Nathan v. State, 61389

• Decision Date: 21 January 1981
• Docket Number: No. 1,No. 61389,61389,1
• Citation: 611 S.W.2d 69
• Parties: Rufus Bernard NATHAN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 69

611 S.W.2d 69

Rufus Bernard NATHAN, Appellant, v. The STATE of Texas, Appellee.

No. 61389.

Court of Criminal Appeals of Texas, Panel No. 1.

Jan. 21, 1981.

Rehearing Denied Feb. 18, 1981.

Joe B. Goodwin, Joseph C. Hawthorn, Beaumont, for appellant.

James S. McGrath, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and W. C. DAVIS, J. ^*

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for murder with malice under the former Penal Code (1925). The jury assessed punishment at sixty (60) years' confinement in the Department of Corrections.

In two grounds appellant contends the evidence is insufficient to prove the corpus delicti and also is insufficient to show he was the guilty agent connected with the criminal act alleged. He further urges that the trial court erred in permitting him to be impeached on a matter collateral to any issue in the case.

We are confronted with a voluminous record of over 1,100 pages of testimony. There was no testimony from an eyewitness or accomplice witnesses, if such ever existed. No murder weapon was ever found, and no confession was given. This then is a circumstantial evidence case.

On October 6, 1972, the deceased, Nathan "Blue" Broussard, disappeared. On February 3, 1977, Anthony Osiechi and his wife from South Dakota were vacationing on the Gulf Coast and went to look for shells when they discovered a skeleton on McFaddin Beach between Sabine Pass and High Island in Jefferson County. The authorities were notified.

The skeletal remains were dressed in a green work shirt and pants with a narrow leather belt and a pair of lace-up type shoes with traces of red paint thereon. In the right front pocket were five pennies and two nickels, none bearing a date later than 1971. There were also two keys and a pecan in such pocket. A pocket knife was found in the right rear pocket. In the remains on the left side a two-sided coin purse was found. On one side of the purse there were a silver dollar, a number of half dollars and quarters, none bearing a date later than 1972. On the other side of the coin purse were a number of dimes, none bearing a date later than 1972.

The skeletal remains with the clothing and other objects were transported to Houston where they were examined by Dr. Joseph Jachimczyk, a pathologist and Harris County Medical Examiner. Dr. Jachimczyk testified the skeleton was the remains of a black male human being at least 60 years of age with a height of five feet 10 inches to six feet tall. Other evidence showed this to be the general physical description of the alleged deceased Broussard.

Evidence also established that when last seen Broussard had been wearing a green work shirt and pants and lace-up type shoes stained with red paint which he had used at his work with the City of Beaumont. Relatives generally testified the City of Beaumont patch had been removed from his work clothing prior to his disappearance. His wife identified the clothing and the leather belt as belonging to the deceased. It was also shown the deceased was in the habit of carrying pecans as well as a pocket knife and a coin purse similar to the one found on the remains with dimes on one side and silver coins on the other side. One of the keys found fit the lock on the back door of the alleged deceased's house and the other fit a lock that the deceased had given to his foster son.

The deceased was further known to carry $200.00 to $300.00 in cash with him most of the time. No billfold or wallet was found on the remains.

Dr. Jachimczyk testified that in his opinion the cause of death was a gunshot wound of the chest "through and through." This was based in part upon his examination of the shirt on the skeleton. There were numerous holes in the shirt, some caused by fire and some by sea cane or panic grass which had grown through the shirt. Dr. Jachimczyk testified, however, he found two holes that were consistent with bullet holes. One hole was on the shirt's front and the other was on the back in line with the first hole. The fibers around the front hole were bent inward and the fibers around the back hole were bent outward according to the doctor. Dr. Jachmiczyk testified that in his opinion the bullet holes were made by a .32 cal. weapon or a smaller weapon. He testified the holes in the shirt referred to were 3/16 of an inch in diameter, and that a .32 cal. weapon would leave a hole .32 inches in diameter. He stated he was an expert on punctures of the human body by gunshot wounds, but neither was an expert on ballistics nor textiles and fabrics. He stated that if the shirt in question had shrunk due to its exposure to the elements the holes could have been made by a .38 or .45 caliber weapon.

He also related he conducted a benzidine test on the said front bullet hole and the reaction was positive, which indicated an 85% probability that the discoloration was human blood. There was no discoloration around the back hole. He admitted there was a 15% probability that a positive reaction to a benzidine test could be due to fruit juices, potato juice, human feces and various vegetable substances.

The doctor also stated a mid-rib bone of the skeleton had a small nick in it. He could not positively testify the nick had been caused by a bullet although consistent therewith. He acknowledged that it could have been caused by a brush or marsh fire that burned the area where the skeleton was found some two months prior to the discovery of the skeleton or that it could simply have been a natural defect in the rib bone.

Dr. Jachmiczyk also testified the death occurred on or about October 6, 1972, but could have occurred anytime from October 6, 1972 until four or five months prior to the discovery of the body on February 3, 1977. He explained the soft tissue in a dead body could disappear within four or five months in a coastal area.

He expressed the opinion that the death was a homicide, a murder, since death resulted "at the hand of another." He based this opinion on what peace officers had told him, the scene investigation, where the body was found, etc. On cross-examination the record reflects:

"A ... I am saying this man came to his death at the hand of another.

"Q Whether by accident or otherwise.

"A Right."

Dr. Frank Fisher, a biologist at Rice University, testified that from an examination of the clothing found on the skeleton and the vegetation and topography of the spot where the remains were found the body had been on the beach for several years. He also stated that the holes which Dr. Jachimczyk had said were bullet holes were not caused by sea cane or panic grass which had caused many of the other holes in the shirt.

Turning the clock back to October 6, 1972, the evidence shows that Nathan Broussard left his home to collect a $25.00 debt from Eddie Lee Ford. Ford testified that he saw Broussard about 7:30 or 7:45 a. m. on that date, but he didn't have the money to pay the debt, and that Broussard informed him he (Broussard) was going to see the appellant to collect another debt and "... he was tired of fooling around and wanted his money."

Joseph Taylor testified he was in the vicinity of the Sunlight Baptist Church with Wilfred Benoit and Fred Harris about 9 a. m. on October 6, 1972, when he was approached by Broussard, who inquired as to what time the appellant would return from driving the school bus. He was told about 9 a. m. Later Taylor saw the appellant leave the area in his car with another person whom he could not identify.

Fred Harris testified one morning he was with Taylor and Benoit when Broussard approached and made an inquiry about the appellant, but he could not recall the date. He did remember that after appellant arrived he (appellant) and Broussard left in appellant's car. Earnest Baloney testified that on October 6, 1972 between 9 and 10 a. m. he saw Broussard and the appellant in appellant's car on Cedar Street in Beaumont stopped at a railroad crossing.

Shirley Little testified she was the Acting Director of the Jefferson County Economic Commission, a Head Start Program, and that the appellant was a bus driver employed by the Program. It was his duty to pick the children up and take them to school in the morning and at 3 p. m. to return them to their homes. On October 6, 1972, she related that appellant called at 2:45 p. m. and asked if someone else could drive the bus that afternoon. Other arrangements were made. She testified that the appellant had from time to time called in to say he could not pick up the children in the afternoon, and his call on October 6, 1972 was not unusual.

She also testified that she was the appellant's girl friend at the time, and that he called her that night but hung up.

When Nathan Broussard did not return home by 8 p. m. on October 6, 1972, his family became worried. He was a man of regular habits and was planning a trip to Louisiana the next day. His wife's knowledge of his planned visit to Ford led to the appellant, who denied being with Broussard, but told the searchers he had last seen Broussard at the Sunlight Baptist Church working on his car. Appellant and others went to the church. They found Broussard's car in working order but did not find him. The police were called. ¹ Delores Berry, niece of Nathan "Blue" Broussard, and Leroy Broussard, a nephew, testified that at the time of the search the appellant acted nervous and strange and after a few days did not maintain contact with the Broussard family although previously he had been a close friend.

Leroy Broussard testified that in the early morning hours of October 7, 1972 he and appellant, along with Norris Bluitt, Elmer Harris, Austin Berry and Will Don Berry were searching for his uncle in appellant's car. He stated he noticed a spot on the back seat of the car that looked like blood. He asked appellant what it was and appellant...