Nelson v. State

• Decision Date: 25 November 1992
• Docket Number: No. 70711,70711
• Citation: 848 S.W.2d 126
• Parties: Marlin Enos NELSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 126

848 S.W.2d 126

Marlin Enos NELSON, Appellant, v. The STATE of Texas, Appellee.

No. 70711.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 25, 1992.

Rehearing Denied Jan. 20, 1993.

Randy McDonald, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Mary Lou Keel, Claire Connors, Ned Morris, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BENAVIDES, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(2). After the jury returned an affirmative finding on both of the special issues submitted under Article 37.071(b)(1) and (2), the trial court imposed the penalty of death. This case is before us on direct appeal.

I SUFFICIENCY CLAIM

Appellant alleges that the evidence is insufficient to support the conviction; therefore, a review of the facts is necessary. James Randle Howard lived in an apartment at 3402 Garrott Street in Houston, Texas. Howard was known by his friends to be homosexual. On August 25, 1987, his downstairs neighbor, Joe Castagno, came home at 6:00 p.m. Castagno was reading a paper when he heard an automobile arrive. From his window Castagno saw Howard and a young man carrying a plastic sack go upstairs to Howard's apartment. Twenty to thirty minutes later Castagno heard sounds which he described as "thuds and bumps" coming from Howard's residence. About thirty minutes after this, Castagno saw the young man come down the stairs and enter Howard's automobile. The man appeared to have difficulty starting the Honda and then getting it in proper gear, but soon he was able to drive the automobile away. Castagno did not observe the man carrying anything when he came downstairs, and later was unable to identify the appellant in a police lineup.

Howard did not report for work at Southwestern Bell at 11:00 p.m. as scheduled the night of August 25. He did not telephone his supervisor at anytime during the 11:00 p.m. to 7:00 a.m. shift and his co-workers became worried. They attempted to telephone the victim's residence, but there was no answer. Ann Hatteberg, a friend and co-worker for five years, drove by Howard's residence, located in the Montrose area of Houston, during the night and noticed that Howard's automobile, a black Honda, was missing. Later, Hatteberg contacted local hospitals and the police in an unsuccessful attempt to locate Howard. At the conclusion of her shift, Hatteberg and another co-worker, Doa Tran, drove back to Howard's apartment. His automobile was still absent. Hatteberg and Tran obtained entry to the apartment complex, and, after knocking and getting no answer, Hatteberg broke a window and the two of them crawled inside.

Hatteberg observed a tray on the living room floor containing marijuana. Hatteberg was aware that Howard smoked marijuana. On the coffee table she saw a beer can, and this struck her as unusual because, she testified, Howard did not drink. She also observed black leather gloves on the couch, which she regarded as unusual because she did not think Howard would wear black leather gloves in August. At trial the gloves were identified as similar to a pair owned by Howard. Blood was discovered on the right hand glove. After a brief search, Hatteberg and Tran came to the bedroom door. The door was locked, and Hatteberg broke in. She and Tran found Howard's body on the floor in a large pool of blood.

Aurelio Espinola, deputy chief medical examiner for Harris County, testified at trial that Howard had suffered a number of blows to the body and had been stabbed fifteen times. He had a fractured skull and died as a result of blood loss.

In the bedroom near Howard's body police discovered a bloody ten-pound exercise bar and a butcher knife which, Espinola testified, were instruments that could have made wounds consistent with Howard's wounds. In addition to the butcher knife and exercise bar, police found a bloody steak knife and, on the bed, a telephone whose cord had been severed. Also on the bed were various papers and a suitcase containing pornographic material. Appellant's fingerprints were lifted from a piece of paper on the deceased's bed, a lighter on the floor, the bathroom door, and a can of Miller Lite beer that had been retrieved from the kitchen trash can.

Katherine Ann Howard, the deceased's sister, and her parents later came to Houston to collect his personal property. Howard owned an expensive stereo system, television, and two video cassette recorders, all of which were found in his apartment. However, Katherine Howard discovered that missing were a gold necklace, all of her brother's watches, including a Gucci watch, his camera and lenses, and several shares of stock. The safe was open and empty and the key to it was missing.

Michael Gramblin testified that he met appellant on either August 25 or 26 and at that time appellant was driving a relatively new gray or black compact automobile. Gramblin had never seen him in such a nice vehicle. Gramblin testified that he visited appellant in jail where appellant told him not to tell the prosecutors about the automobile. Gramblin was aware that appellant had financial problems. Sharon Hambrick, appellant's sister, also testified that appellant was having financial problems.

Early in the afternoon of August 28, Todd Janke, a Houston police officer, was working his second job as security patrol for an apartment management company. Janke observed appellant operating a motorcycle with a faded rear license plate. Appellant drove the motorcycle off the premises of the apartment complex Janke was patrolling, onto a public street, and then back to the apartment complex about fifteen minutes later. When appellant stopped, Janke approached, determined that the license plate was expired, and asked appellant for some identification. When appellant opened his wallet, Janke observed a plastic baggie in it, which was later determined to contain cocaine. Appellant was arrested.

At about 9:45 p.m. on August 28, Houston Police Detectives D.L. Bacon and John Burmester met with appellant and took what was to be the first of two statements from him. In his first statement appellant said that he, a person named Mike, and Howard had driven to Howard's apartment after smoking marijuana. Nothing in the statement indicates why they went to the apartment. Ultimately, Mike and Howard began to argue. The statement then reads, somewhat cryptically, "Mike and the man [Howard] then went into the bedroom where they began yelling. The man bloody. Mike then handed me a duffle bag, a two-way speaker and another smaller bag. Mike then went back in the room, and I heard the man start yelling. Then it became very quiet." According to the statement, appellant and Mike drove to various locations in Howard's automobile. The statement closed by noting that a cassette player and speakers might be at the apartment of Sharon Hamrick, appellant's sister. After taking this statement Bacon and Burmester transported appellant to the Hamrick's apartment. From Hamrick's apartment they retrieved a Sony Walkman and a set of speakers. Doris Nelson, appellant's common-law wife who was living at Hamrick's apartment with her husband, testified that an acquaintance of appellant, David Jolly, had brought the Sony Walkman and speakers to her. At trial these items were determined by serial number and receipt to belong to the deceased. In addition, Bacon and Burmester recovered a pair of earrings from another tenant who lived in the same apartment complex as Hamrick. Ann Hatteberg testified that the earrings had been presents she had given to Howard. ¹

Early on the morning of August 29 Detective Burmester took a second statement from appellant. The statement read:

I have already made one statement about the guy that picked me up in the black Honda car. What I said in that Statement [sic] was not all true. I decided to get it all off my chest and tell the truth [sic]. The man picked me up at the McDonalds on Westhimimer [sic] by Waugh Drive. The guy circled the block about 10 times and slowed down every time he came by and looked at me. Then he stopped and asked me if I wanted to smoke a joint. I got in the car with him and we went to his apartment. I had a paper sack with some beer in it and I took it along. It was a plastic sack with handles in it. On the way to his apartment he told me that he had some chrystal, and that was why I went with him, to his apartment after smoking a joint with him.

When we got to the apartment we walked upstairs together. As soon as we got in he gave me the chrystal and I did it. I had a needle and shot up in the arm. I told him that I wanted to play with his weights after I shot up and went into bedroom. He followed [sic] me in there. I picked up a bar off of the box that was lying in back of the weight set. He was looking at me and I went up on him and busted him with the bar. I kept hitting him and he kept knocking things over. He went down, but he kept moving. There was a steak knife or a kitchen knife or something on the dresser. It looked like he had been cutting some rubber thing with it and he was half way through with it. I got the knife and while he was lying on the floor moving around I stabbed him. I kind of blocked everything out and [sic] just kept stabbing him. Every time I hit him I got angrier.

I went into the closet and got a gray sports bag, then I started going through everything and threw all the jewelry in the bag. I took sun glasses, the Sony Walkman and speakers, billfold which had about $50 in it, the keys to his car which were on the table in the dining room. That's about it. Then I left, went to the car, got in and after getting going after having a bunch of trouble with reverse, I pushed it into the street and then left there.

The first thing I did was I went and got some Chrystal [sic]. Then I picked up Mike and Tim, I told then [sic] that I bought the...