Mize v. State

• Decision Date: 26 May 1988
• Docket Number: No. 13-87-089-CR,13-87-089-CR
• Citation: 754 S.W.2d 732
• Parties: Robert MIZE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 732

754 S.W.2d 732

Robert MIZE, Appellant, v. The STATE of Texas, Appellee.

No. 13-87-089-CR.

Court of Appeals of Texas,

Corpus Christi.

May 26, 1988.

Rehearing Denied June 23, 1988.

John Miller, Jr., William G. Bernett, Sinton, for appellant.

Thomas L. Bridges, Dist. Atty., Sinton, for State.

Before DORSEY, UTTER and BENAVIDES, JJ.

OPINION

DORSEY, Justice.

A jury found appellant guilty of murdering his wife, Lynna, and assessed punishment at 75 years in the Texas Department of Corrections. We affirm.

Appellant, in his first two points of error, contends that the evidence is insufficient to sustain the conviction, which is based on circumstantial evidence. The State's interpretation of the evidence was that appellant suffocated his wife, Lynna, while she slept in their bedroom and set fire to their house to conceal the crime. The motive for the killing in the State's view was an extra-marital affair between the appellant and a neighbor.

Because the evidence was at times conflicting and the conclusions drawn were hotly contested, it is necessary to set out the evidence in some detail.

Frank Gaydos, appellant's neighbor, testified that around 5:00 a.m. on May 19, 1986, after being awakened by the sound of breaking glass, he went to his front door and found J.W. and Spencer Mize, ages seven and nine, who told him their house was afire. Mr. Gaydos found appellant, Robert Mize, coming through a window of the burning house. Appellant told him that Lynna Mize was still in the house. Mr. Gaydos entered the house through the same window that appellant had exited, but was unable to see anything because of the smoke. He and appellant went to another window in the bedroom of Lynna and Robert Mize. They broke that window, and appellant went in first and came back out stumbling. Mr. Gaydos then went in through the window, found lots of heat and some flame, and saw Lynna Mize lying on her bed. He touched her and her body was hot. Mr. Gaydos was able to pull Lynna Mize from the house through the window. Mr. Gaydos testified that Lynna's body was hot and stiff.

Various rescue personnel who responded to the fire testified that Lynna's body was rigid. Mouth-to-mouth resuscitation was attempted by several of the early arrivals, but to no avail. One paramedic testified that there was a pooling of blood on the back of her neck and upper shoulders, an indication that she had been dead for a period of time.

The medical examiner of Nueces County, Dr. Joseph Rupp, testified that Lynna Mize died prior to the fire and not as a result of it. The evidence that gave rise to his conclusion was that no soot was found in the mucus of the nostrils, the bronchial tree, nor the lungs. Dr. Rupp testified that in his opinion death was caused by asphyxiation: a lack of oxygen. Dr. Rupp's conclusion that the cause of death was asphyxiation was based primarily on the existence of petechial hemorrhages in the eyes caused by lack of oxygen. He found that there were fresh lacerations on the lower lip and a fresh laceration of the frenulum, a small membrane inside the mouth between the upper lip and the gums. There were no bruises on the hands, palms, or knuckles that would indicate she was held or that there was a struggle. There were no defense wounds, and her medium length fingernails were intact. Dr. Rupp concluded that the death was not natural and was intentionally caused. He opined that the laceration of the frenulum was consistent with death by smothering. The victim had food in her stomach when she died. The stomach would have emptied in approximately four hours after eating.

A fire inspector, Manuel Vasquez, who is a Deputy State Fire Marshal, testified that he had determined from examination of the scene that an undetermined combustible material was ignited in two locations in the Mize bedroom: under the bed upon which the body was located, and on the floor in the entranceway of the bedroom from the hall. From the evidence available, he concluded that the fire smoldered because of the lack of oxygen until the windows were broken to give it a fresh source of air. It had been smoldering about an hour before the windows were broken, at a little after 5:00 a.m. The two independent fires were not caused by one another, and he concluded that someone had intentionally set both.

Other evidence was admitted during the State's case in chief that the appellant owned a security and fire alarm company, and he installed various alarms in businesses in the area, as well as maintained them after installation. Fire alarms were in place in the house. An employee of appellant, Leroy Grumbles, testified that appellant told him prior to the fire that he was having an affair with a lady who lived across the street. Mr. Grumbles further testified that appellant told him that he and his wife were having certain marital problems and that Lynna Mize could leave at any time as long as she didn't take the children with her. Grumbles further testified that the appellant told him he knew how to cover a crime with a fire so the crime could not be detected.

Fire Chief Martinez of the Aransas Pass Fire Department testified that when he arrived at the fire scene other firemen and police officers had already arrived. The doors to the Mize house were locked, and water was being squirted in the windows of the house. After the fire was extinguished, he got keys to the house from Leroy Grumbles and later accompanied the representative of the State Fire Marshall through the scene.

The appellant, Robert Mize, testified that he had gone on several business calls on the evening before the early morning fire and returned home sometime between 9:30 and 11:00. He and his wife visited a while before she decided to go to bed. He stayed up and watched a movie on television. He testified he was awakened in the early morning by the sound of a fire alarm in the house. He went into the east side of the house, where all three bedrooms were located, and found smoke in the first bedroom where the children slept. The children were awake and crying. The defendant broke a bedroom window and got the children out of the house through that window. He testified he was unable to get back to his bedroom to rescue his wife because of the smoke in the hall.

The defense called a fire investigator as an expert who testified that the fire originated in a closet and he found no evidence of incendiary causation. A large number of witnesses testified as to the good relations between the defendant and his wife and their involvement in community affairs.

Dr. Vincent Dimaio, Chief Medical Examiner for Bexar County, testified that from the autopsy report the conclusions of an asphyxial death were justified and that the victim did not die in the fire. He faulted the failure of the autopsy to eliminate other possible causes of death because of the lack of sophistication of the tests conducted. He suggested that the size of the victim and the absence of evidence of a struggle argue against death by suffocation. ¹

As is the case in every conviction based on circumstantial evidence, certain hypotheses other than the guilt of the defendant can be presented to explain the commission of the crime. In applying the correct standard of review, however, the duty of an appellate court is not to reweigh the facts or decide guilt, but to determine whether a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.

There is no evidence to support that anyone other than appellant, Lynna, and the children were present in the Mize house on the night of the fire. The house was locked and there was no evidence of forced entry prior to the discovery of the fire. The evidence shows Lynna was dead before the fire began and, considering the rigidity of the body and presence of food in the stomach, had died of asphyxiation a considerable time before the fire was discovered. There is evidence to suggest that Lynna was not in her normal sleeping position (as the bed lacked a covering sheet and blanket) and was, in fact, positioned in a laid out manner on the bed. The fire was intentionally set in two locations in the bedroom; it was a smoky fire that smoldered an hour or so before discovery; and typical smoke detectors would have sounded shortly after such a fire began. There was evidence that the victim was "smothered" as alleged in the indictment.

Given the circumstances of death, the nature of the fire, and the other surrounding circumstances, the evidence is sufficient to sustain the conviction. Appellant's first and second points of error are overruled.

SUPPRESSION POINTS

In appellant's third, fourth, fifth, and sixth points of error, he complains the trial court erred in failing to grant his motion for new trial because certain photographic slides taken during the autopsy were not made available to him in violation of a discovery order. The trial court, prior to trial, ordered the State to produce, to allow the defense to inspect and copy, all photographs taken during the autopsy of the deceased. The district attorney gave the appellant all the photographs in his possession for inspection. However, seven photographic slides that were taken by Dr. Joseph Rupp, the Nueces County Medical Examiner, were not disclosed to the appellant nor to the district attorney until after the State's rebuttal case began.

During the State's case-in-chief, Dr. Rupp testified that the deceased died before the fire of asphyxiation that was caused by suffocation. The evidence of asphyxiation, a deprivation of a supply of oxygen, relied on by Dr. Rupp were petechial hemorrhages in the eyes. He also found a contusion and laceration of the frenulum that appeared fresh and a small abrasion or contusion of the upper lip. These facts, along with the conclusion that she did not die in the fire, were the foundation of his finding that the death was not natural and was intentionally caused...