Nickerson v. State

• Decision Date: 23 January 2002
• Docket Number: No. 10-99-089-CR.,10-99-089-CR.
• Citation: 69 S.W.3d 661
• Parties: Alphonso NICKERSON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

69 S.W.3d 661

Alphonso NICKERSON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 10-99-089-CR.

Court of Appeals of Texas, Waco.

January 23, 2002.

Earl R. Waddell, Jr., Ft. Worth, for appellant.

Tim Curry, Tarrant County Crim. Dist. Atty., Charles M. Mallin, John Stride, Tarrant County Asst. Crim. Dist. Attys., Fort Worth, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

A jury convicted Alphonso Nickerson, Jr. of murder and two counts of aggravated sexual assault. The jury assessed his punishment at life imprisonment for the murder and ninety-nine years for each of the aggravated sexual assaults. Nickerson claims in four points that the evidence is legally insufficient to prove that: (1) he acted with intent to cause serious bodily injury; (2) he committed an act clearly dangerous to human life; (3) the victim was alive when he committed the alleged sexual assaults; and (4) he placed the victim in fear of death or serious bodily injury or threatened to cause death or serious bodily injury to her. He argues in his three remaining points that: (1) the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon; (2) he has been convicted and punished twice for the same offense in violation of double jeopardy; and (3) the trial court abused its discretion by denying his motion for mistrial based on an alleged Brady violation.

BACKGROUND

The offenses of which Nickerson was convicted all arise from the same transaction. The indictment alleges in pertinent part that Nickerson did:

with intent to cause serious bodily injury to Maxine Nash, commit an act clearly dangerous to human life by suffocating the said Maxine Nash with the weight of the body of the said defendant, which caused the death of Maxine Nash, and the said defendant did then and there use or exhibit a deadly weapon during the course of said suffocation, to—wit: the body of the defendant, that in the manner of its use or intended use was capable of causing death or serious bodily injury,

....

... and ... did intentionally or knowingly cause the penetration of the female sexual organ of Maxine Nash by inserting his penis into the female sexual organ of Maxine Nash without the consent of Maxine Nash by compelling Maxine Nash to submit or participate by the use of physical force or violence and by threatening to use force or violence against Maxine Nash and Maxine Nash believed that the defendant had the present ability to execute said threat, and the defendant by acts or words placed Maxine Nash in fear that death or serious bodily injury would be imminently inflicted on Maxine Nash and the defendant by acts or words occurring in the presence of Maxine Nash threatened to cause the death of or serious bodily injury to Maxine Nash,

The third count of the indictment is virtually identical to the second except that it alleges as an aggravating circumstance that Nickerson "used or exhibited a deadly weapon, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury, in the course of the same criminal episode...."

According to the testimony, a neighbor saw Nash talking to Nickerson in her front yard at approximately 9:45 on the morning in question. Nash's twenty-one-year-old grandson Doug arrived at her house about fifteen minutes later. When Doug arrived, he found the residence locked. He heard no answer when he knocked, but he noticed Nash's car and Nickerson's truck in the driveway. As Doug walked around the house checking all the doors, he heard a voice from inside shouting, "I'm f—ing you, you curly-haired mother f—er. I'm f—ing you, I'm f—ing you, I'm f—ing you."

After trying again to gain the attention of someone inside by beating on the windows and door and after breaking a side window, Doug ran down the street seeking assistance.¹ He summoned an officer who happened to be driving in the neighborhood. When Doug returned with the officer to the residence, he heard the same shouting as before. The officer testified that he heard a television. At Doug's insistence, he "tried to listen to something in between the TV set, and [he] heard some moaning, but [he] couldn't—it was distorted, so [he] wasn't sure exactly what it was."

The officer radioed for assistance and told Doug that he would not enter the house until other officers arrived. When additional officers arrived, they debated whether to kick in the door. As they did so, Doug kicked in the door and rushed inside. Doug and the officers saw Nickerson in a back room atop Nash's body which lay in a chair. The primary officer testified that he saw Nickerson engaged "in a sexual act" with her body. Nickerson did not acknowledge the officers' presence even after they twice announced themselves and directed him to get off of Nash's body. The three officers physically removed Nickerson and handcuffed him. According to the primary officer, Nickerson repeatedly stated, "I've got you, sap-sucking bitch, you. I've got you, sap-sucking bitch, you."² Nash was dead, and the primary officer "noticed that what appeared to be rigor mortis had set in."

A crime scene investigator noticed blood on the carpet beneath the chair in which Nash's body lay. Because he ran out of scalpel blades, he took a knife from the kitchen to finish removing a carpet square containing the blood stain. The kitchen knife had blood on it, but a forensic scientist testified that it would not be useful as evidence because of the likelihood that it had been contaminated when the investigator used it to remove the blood-stained carpet. The investigator found Nickerson's shorts in a bedroom. A pocket knife was found in the pocket of his shorts, but forensic testing revealed no blood on this knife.

An autopsy revealed that Nash suffered a blow to the head and other abrasions. She had a stab wound in the "perineal area" and two smaller lacerations to the right of this wound.³ The medical examiner testified that this wound was consistent with that which would be caused by "a sharp instrument such as a knife." He opined that her cause of death was overlying, which he defined as "the weight of a— of a body on top of another body that restricts respiratory movements."

MURDER CONVICTION

In Nickerson's first point, he challenges the legal sufficiency of the evidence to establish that he intended to cause death or serious bodily injury to Nash. He contends in his second point that the evidence is legally insufficient to prove that he committed an act clearly dangerous to human life.

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App.2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.App.1991).

To obtain a conviction under the theory of murder alleged, the State had to prove that: (1) Nickerson committed an act with intent to cause serious bodily injury; (2) this act was "objectively clearly dangerous to human life"; and (3) this act caused Nash's death. Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex.Crim.App.1983); Jones v. State, 716 S.W.2d 142, 155-56 (Tex.App.-Austin 1986, pet. ref'd). We examine first the sufficiency of the evidence to show that Nickerson acted with the intent to cause serious bodily injury.

A jury may infer intent from the acts and words of the defendant, the manner in which the offense was committed, the nature of the wounds inflicted, and the relative size and strength of the parties. See Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995); West v. State, 846 S.W.2d 912, 914 (Tex.App.-Beaumont 1993, pet. ref'd).

Based on the allegations of the indictment, the central issue is whether Nickerson intended to cause serious bodily injury to Nash when he exerted the weight of his own body against hers and suffocated her. The primary officer described Nickerson as nearly seven-feet tall and about 280 pounds. It took three officers to remove him from Nash's body. The State presented no definitive proof of Nash's height or weight. Nevertheless, crime scene photographs reflect that, though she would not be characterized as petite, she was significantly smaller than Nickerson.

The medical examiner described the wounds sustained by Nash. She suffered a stab wound in the perineum, a blow to the head, multiple contusions and abrasions, and a laceration to the inside of her upper lip. He testified that the lip injury would be consistent with someone pushing against her lips and teeth. Crime scene photographs reflect that Nash's body was positioned in a chair so that her neck was bent at nearly a ninety-degree angle during the assault. The medical examiner and the primary officer both testified that this position would have made it difficult for her to breath.

Given that the officers found Nickerson atop Nash's body, a rational jury could infer that he stabbed her before commencing the sexual assault. A rational jury could also infer that Nickerson covered Nash's mouth with his hand in an effort to suffocate her. Because of the stab wound, the lip injury noted, the other contusions and abrasions, Nickerson's size, and the position of Nash's body, a rational jury could infer that Nickerson intended to cause Nash serious bodily injury when he lay on her. Accordingly, we overrule Nickerson's first point.

Nickerson's second point questions the legal sufficiency of the evidence to prove that the exertion of his own body weight against Nash constitutes an act clearly dangerous to human life. He cites the history of the human sexual experience for the proposition that sexual...