Michaelwicz v. State

• Decision Date: 02 February 2006
• Docket Number: No. 03-04-00019-CR.,03-04-00019-CR.
• Citation: 186 S.W.3d 601
• Parties: Stephen MICHAELWICZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

186 S.W.3d 601

Stephen MICHAELWICZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00019-CR.

Court of Appeals of Texas, Austin.

February 2, 2006.

Rehearing Overruled February 22, 2006.

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Linda Icenhauer-Ramirez, Austin, for appellant.

C. Bryan Case, Jr., Asst. Dist. Atty., Austin, for appellee.

Before Chief Justice LAW, Justices PURYEAR and ONION.^*

OPINION

JOHN F. ONION, JR., Justice (Retired).

Appellant Stephen Michaelwicz appeals his conviction for murder. Tex. Pen.Code Ann. § 19.03 (West 2005).¹ The jury found appellant guilty and assessed his punishment at ninety-nine years' imprisonment. Notice of appeal was given.

Points of Error

Appellant advances seven points of error. First, appellant contends that the trial court erred in denying appellant's amended motion to dismiss the indictment for pre-indictment delay. Second, appellant urges that the "State committed reversible error" in failing to furnish the trial court with the offense report and "DNA lab reports from another murder case for an in camera `hearing.'" Third and fourth, appellant complains that the trial court erred in prohibiting appellant from presenting evidence that the perpetrator of the offense "might have been" Michael Smith or Gary Gaston. Fifth and sixth, appellant asserts that the trial court erred in failing to grant mistrials at the punishment phase of the trial (1) when the State elicited from David Presley that appellant used drugs after the State had been explicitly instructed not to do so, and (2) when the deceased's father testified that he had placed the deceased's mother in a mental hospital during the trial when the parties had agreed the State would not adduce such evidence before the jury. Seventh, appellant claims that the trial court erred in failing to instruct the jury at the punishment phase of the trial that no adverse inferences could be drawn from appellant's failure to testify at that stage of the trial. We will affirm the conviction.

Background

Appellant does not challenge the legal or factual sufficiency of the evidence to sustain the conviction. A discussion of the facts will place the points of error in proper perspective.

In 1988, Stephanie Walrath and the deceased, Debra Guess, lived at 8510 Riddington Drive in Austin. On Saturday, February 20, 1988, Walrath drove Guess to New West, a country western club. She described Guess as being in a good mood. Guess had a "new outfit" she wanted to show off, and wanted to see if Gary Gaston was at the club. Walrath explained that Guess had dated Gaston "off and on." Guess entered the club and returned to Walrath's vehicle. She told Walrath that she did not find Gaston but she was going to stay at the club and have a good time. Walrath recalled that Guess had consumed two or three beers before entering the club. Walrath related that she went to her boyfriend's apartment where she spent the night.

The next morning, Sunday, February 21, 1988, Walrath returned to her home about 10:30 a.m. She found Guess lying on the living room floor, dead. Guess, wearing a pink house dress, had one of Walrath's scarfs around her neck and her throat had been cut.

Austin Police Officer Fermin Delatorre was on patrol that morning and was the first officer on the scene. The EMS and the fire department were already at the address. Delatorre observed Guess's body, the gash across the neck, the blood and the scarf. Officer Danny Campos was dispatched to the scene. His investigation showed no forced entry of the house. Sergeant Detective Bruce Boardman arrived on the scene about 11:15 a.m. He described the blood around Guess's head as fresh. Boardman found a bone handled pocket knife under Guess's bed. From his investigation, he concluded the violence began in the hallway and escalated to the living room.

Dr. Robert Bayardo, Travis County Medical Examiner, performed the autopsy on the same day. He testified that the cause of death was asphyxia due to manual and ligature strangulation, along with the wound to Guess's neck. The wound was one-fourth of an inch in width, and had penetrated deeply on the right side down to the spine, severing the carotid artery and partially severing the jugular vein. Dr. Bayardo testified that Guess was still alive when her throat was cut because her heart continued to pump blood. Based on the liver temperature of 96 degrees, the absence of rigor mortis, and the degree of liver mortis, the medical examiner stated that Guess died between 9 and 9:30 a.m. on February 21, 1988. The doctor explained that assailants often cut themselves when cutting victims.

Eighteen-year-old Michael Smith was washing the exterior windows of the house where he lived on February 21, 1988, between 9 and 10 a.m. He lived there with his father, Herman Rosales and Rosales's wife, Ann Walrath, sister of Stephanie. The house was across the street from the house where Guess lived and her body was found.

Smith testified that he observed a black Mercury Cougar in the driveway of Guess's house — a car he had never seen before. A little later Smith saw a man, whom he identified as appellant, exit Guess's house carrying two white trash bags with something red inside. Appellant placed the bags in the Cougar and returned to the house. Smith described appellant as having long curly hair and a mustache, and wearing jeans, a pink or red shirt, cowboy boots and a straw hat. About a minute later, appellant emerged again from the house, got into the Cougar and drove off at about 10 a.m. Approximately thirty minutes later, Stephanie Walrath came to the Rosales home to report that she had found Guess dead.

Herman Rosales also observed the black Cougar in the driveway at the Guess house on the morning of February 21, 1988. Rosales was in his living room with a large window and a good view of the driveway. He stated that there was no possibility that anyone could have driven up between the time he saw the Cougar and the time Guess was found dead. Ann Walrath testified that she first noticed the black Cougar in the driveway about 4:15 a.m. on February 21, 1988, when she was nursing her baby, and then again about 9:30 a.m.

Police investigation led to the black Mercury Cougar and its owner, Chuck Northam. Northam testified that in 1988 he had been a close friend to appellant. On Saturday, February 20, 1988, he and appellant decided to drive from Temple to Austin to party, drink alcohol, dance, and pick up girls. About 9:30 or 10 p.m., they arrived in Austin in Northam's 1987 black Mercury Cougar and went to the New West Club. They were drinking beer at the time. Northam stated that he met a girl, Phyliss Lewis, at the club and learned she worked for the same company that he did. He spent most of the evening dancing and talking with Lewis. The New West Club closed at 2 a.m. Sunday morning. Appellant suggested that they go to the Dallas Nightclub. Northam told appellant to drive the Cougar and he would ride with Lewis in her car. At the Dallas Nightclub, Northam saw appellant was with a girl. When the club closed at 4 a.m., appellant told Northam that he was going to a motel with the girl. Northam, who planned to spend the night with Lewis, let appellant borrow his car. Lewis gave her telephone number to appellant so he could contact Northam about their return trip to Temple. Appellant agreed not to call Northam too early in the morning.

Northam testified that appellant called him at 12:30 p.m. on February 21, 1988, and informed Northam that he (appellant) had already returned to Temple in Northam's car. Northam thought this was strange. Lewis drove Northam to Temple. On Monday, February 22, 1988, Lewis called Northam and informed him that there had been a murder in Austin and his car was involved. The police contacted Northam and interviewed him. Lewis generally corroborated Northam's testimony.

Paul White's testimony placed Guess at the New West Club on February 20, 1988. He had seen her there on prior occasions. On the night in question, she was drinking and "seemed out of it." White saw Guess flirting with a "cowboy" and they danced sexually. White tried to get Guess to go home but she said that she was going to the Dallas Nightclub with the "cowboy." Keith Couch, a security guard at the Dallas Nightclub, related that Guess was in the club between 2 and 4 a.m. on February 21, 1988, with a man with a cowboy hat and mustache.

Appellant's fingerprints were found in the Guess house on a bathroom door and a knickknack. A mixture of DNA was found on the door post of the Guess house and on the driver's door of the Mercury from which mixture appellant and Guess could not be excluded as contributors.

Appellant testified in his own behalf. Appellant acknowledged that he and Northam drove to the New West Club in Austin from Temple, and that at the club Guess hollered "Hey, cowboy" to him twice and motioned to him. He introduced himself. At closing time, he asked Guess to go with him to the Dallas Nightclub. The two drove there in Northam's car. When the Dallas Nightclub closed about 4 a.m., appellant said that Northam left with Phyliss Lewis who gave appellant her telephone number. Northam told him not to call that number before noon. Appellant left the club with Guess in Northam's black Mercury Cougar. Guess wanted to go to a motel, but appellant did not have enough money for a motel. Guess explained that they could not go to her home if her roommate was there. They drove to Guess's home. The roommate's car was not there so Guess invited appellant into the house.

Appellant related that he took the ice chest with beer from Northam's car and took it into the house. Appellant then drank two more beers. Guess placed a comforter on the living room floor and invited him to lie down with her. Appellant did and they kissed and fondled each other. They did not have sexual intercourse. Appellant stated that after he explained his performance...