Mosley v. State

• Citation: 643 S.W.2d 212
• Decision Date: 24 November 1982
• Docket Number: No. 2-81-198-CR,2-81-198-CR
• Parties: Larry Norris MOSLEY, Appellant, v. The STATE of Texas, State.
• Court: Court of Appeals of Texas

Page 212

643 S.W.2d 212

Larry Norris MOSLEY, Appellant, v. The STATE of Texas, State.

No. 2-81-198-CR.

Court of Appeals of Texas,

Fort Worth.

Nov. 24, 1982.

Frank W. Sullivan, III, Fort Worth, for appellant.

Tim Curry, Dist. Atty. and Victoria Fay Prescott, Asst. Dist. Atty., Fort Worth, for appellee.

Before HUGHES, JORDAN and RICHARD L. BROWN, JJ.

OPINION

JORDAN, Justice.

This appeal is from conviction of murder. V.T.C.A., Penal Code, sec. 19.02.

The jury assessed punishment at 99 years imprisonment.

We affirm.

Appellant complains that (1) the evidence is insufficient to support the allegation in the indictment that the appellant caused the death of the decedent in Tarrant County, Texas; (2) the trial court erred in failing to instruct the jury on the law of circumstantial evidence; (3) in failing to suppress the confession; (4) in refusing to suppress evidence of the search of appellant's automobile; (5) in refusing to suppress State's Exhibit No. 16; (6) in refusing to suppress State's Exhibit No. 17; (7) in refusing to suppress State's Exhibit No. 18; (8) in refusing to suppress State's Exhibit No. 19; (9) in refusing to suppress State's Exhibit No. 20; (10) in refusing to suppress State's Exhibit No. 21; (11) in refusing to suppress State's Exhibit No. 22; (12) in refusing to suppress State's Exhibit No. 24; (13) in refusing to suppress State's Exhibit No. 37; (14) in refusing to suppress State's Exhibit No. 38; (15) in refusing to suppress State's Exhibit No. 39; (16) in refusing to suppress State's Exhibit No. 40; (17) in refusing to suppress State's Exhibit No. 41; (18) in admitting State's Exhibit No. 26, a color autopsy photograph of the decedent; (19) in admitting State's Exhibit No. 28; (20) in admitting State's Exhibit No. 29; (21) in admitting State's Exhibit No. 30; (22) in admitting State's Exhibit No. 31; (23) in admitting State's Exhibit No. 32; (24) in admitting State's Exhibit No. 34; (25) in permitting the State to elicit expert testimony from a prosecutor as to the State's reasons for deleting exculpatory portions of confessions; (26) in admitting State's Exhibit No. 2, a color photograph of the decedent's body; (27) in admitting State's Exhibit No. 6, photograph of the decedent's body; (28) in admitting State's Exhibit No. 8, a color photograph of the decedent's body; (29) in admitting State's Exhibit No. 11, a color photograph of the decedent's body; and (30) in refusing to instruct the jury to disregard a prosecutor's comment on the appellant's failure to testify.

On May 5, 1980, Greyhound bus driver David Blassingame picked up two women passengers in Monahans, Texas. These women had tickets to Fort Worth, Texas, and were scheduled to arrive in Fort Worth at 4:10 a.m. Mr. Blassingame identified photographs of Rebecca Hampton and Penny Dale at trial as being the women who got on the bus at Monahans on the evening of May 5, 1980.

On the morning of May 7, 1980, Charles Smith discovered the body of Rebecca Hampton in a ditch along the side of Quail Road in Fort Worth, Tarrant County, Texas. An autopsy of the body of Rebecca Hampton revealed that the cause of death was massive bleeding due to multiple stab wounds to the chest, abdomen and pelvic region. Ms. Hampton had been stabbed twelve times.

On May 5 and 6, 1980, appellant had been living at 4817 South Hughes, Fort Worth, Tarrant County, Texas. On the morning of May 6, 1980, appellant's landlady, Fay Lias, noticed that appellant had stains on his shoes. These stains appeared to be a combination of blood and mud. In response to her inquiry, appellant stated that he had been in a fight with a man over the man's wife. Ms. Lias also noticed bloodstains on the back of appellant's pants.

That evening when Ms. Lias returned home from work, she noticed that the lock on the garage had been broken and appellant's car had been parked inside the garage. Ms. Lias looked inside appellant's car and saw bloodstains on the seat and in the back of the car. On May 7, 1980, Ms. Lias reported what she had seen to the police, and requested that they come to her home.

On May 7, 1980, plainclothes police officer Richard Sylvest and five other plainclothes police officers arrived at appellant's residence. A search of appellant's car revealed what appeared to be blood on the front and rear seats, on the inside of the windows and in the trunk. This prompted Officer Sylvest to give appellant his Constitutional warnings and place him under arrest.

In the early morning hours of May 8, 1980, appellant confessed to killing two women whom he had picked up downtown at Commerce and 13th Street. Appellant stated that the girls informed him that they were looking for a place to stay. Appellant told the girls to get inside the car, and they proceeded to drive to the North Side. Appellant parked his car at McKinley and Long Street and fell asleep. Appellant claims that he awoke to find one of the girls going through his things. According to appellant, this girl had a knife in her right hand. A scuffle ensued, and appellant stabbed the shorter, heavier set girl who was sitting in the front seat. Appellant admitted to stabbing this girl in the chest, neck, and several times in the back.

Appellant then turned to the girl in the back seat, who he claims had her arm around his neck. Appellant pushed her into the seat and began to stab her. This girl grabbed at the knife, and appellant stated that he continued to stab her.

The first ground of error contends that the State's evidence was not sufficient to prove venue. Appellant also contends that he was entitled to a circumstantial evidence charge on the venue issue.

The indictment alleges that the appellant, on or about the 6th day of May, 1980, in Tarrant County, Texas, intentionally and knowingly caused the death of Rebecca Hampton by stabbing her to death with a knife.

The burden of objecting to the prosecution's failure to prove venue is on the defendant. Vasquez v. State, 491 S.W.2d 173 (Tex.Cr.App.1973). When the issue of venue is not raised in the trial court, it is presumed that proper venue was proved. Crocker v. State, 573 S.W.2d 190, 204 (Tex.Cr.App.1978); V.A.C.C.P. art. 44.24.

Appellant contends that this burden was met in the instant case by the motion for instructed verdict. In his motion for instructed verdict, appellant complains of the State's failure to "prove the elements of the offense as set forth in the indictment" and their failure "to prove the elements of the corpus delicti as set forth in the indictment."

We hold that such a conclusive statement of grounds is insufficient to preserve the issue of venue now raised on appeal. It is well settled that general objections are insufficient to preserve error for review. Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980). It is also axiomatic that objections must be timely made at trial, and that such objections must comport with the complaint subsequently raised on appeal. See Crocker, supra, at 204.

In his motion for new trial, appellant did make a more specific objection to the State's proof regarding venue; however such was not timely for purposes of preserving this issue for appellant review. Gonzales v. State, 486 S.W.2d 380 (Tex.Cr.App.1972). The Court in Gonzales, noting that no issue as to venue was raised prior to the filing of a motion for new trial and that nothing was before the court affirmatively showing that venue was not proven, held that under the circumstances proof of venue would be presumed.

Appellant also contends that he was entitled to a circumstantial evidence charge on the venue issue. We disagree. A charge on circumstantial evidence is inapplicable on the question of venue. Curtis v. State, 167 Tex.Cr.R. 536, 321 S.W.2d 587, 589 (1959).

In the instant case, appellant did not properly raise the issue of the sufficiency of the proof of venue in the trial court because his motion for an instructed verdict was too general to properly raise the issue of venue. Although his subsequent motion for new trial did raise the issue more specifically, such was not timely under Gonzales, supra. Consequently, there being nothing before the court to affirmatively show that venue was not proven in the instant appeal, nothing is preserved for review.

Appellant's first ground of error is overruled.

The second ground of error contends that the trial court erred in failing to instruct the jury on the law of circumstantial evidence.

Appellant argues that his confession was not an unequivocal admission of the offense charged due to its exculpatory language, and the absence of an admission as to venue, rendered the confession circumstantial evidence, thereby necessitating a charge on circumstantial evidence.

Appellant makes no effort in his brief to point out which statements he considers exculpatory. Presumably appellant refers to the statements that he saw one girl going through his possessions, and that this girl had a knife.

Such an exculpatory statement merely goes to the issue of appellant's intent. It is well established that a charge on circumstantial evidence is not required where the intent of the accused is the only element not proven by direct evidence. Glover v. State, 566 S.W.2d 636, 638 (Tex.Cr.App.1978); Baldwin v. State, 538 S.W.2d 109, 112 (Tex.Cr.App.1976); Littleton v. State, 419 S.W.2d 355, 357 (Tex.Cr.App.1967).

Alternatively, although appellant requested a circumstantial evidence charge, he failed to call the trial court's attention to his assertion that the confession was not sufficient to remove it from the circumstantial evidence rule. See Patterson v. State, 416 S.W.2d 816, 820 (Tex.Cr.App.1967). Each of appellant's requests for a circumstantial evidence charge were merely conclusive requests, with no indication as to the basis of the request, or to what aspect of the case the charge would apply. Consequently appellant's contention is not preserved for appellate review.

Appellant's second...