Palafox v. State
Decision Date | 24 January 1979 |
Docket Number | No. 53611,53611 |
Parties | Kenneth Julian PALAFOX, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for capital murder; more specifically, appellant was charged with murder in the course of a robbery pursuant to the provisions of V.T.C.A., Penal Code, Section 19.03(a)(2). 1 Punishment was assessed at death. See Art. 37.071, V.A.C.C.P.
Appellant's third ground of error is that the evidence is insufficient to support the jury verdict finding appellant guilty of capital murder. We uphold this contention and reverse.
In this case the State relied for conviction on the appellant's confession, as well as circumstantial evidence which tended to support the confession. Omitting the warnings and formal parts, appellant's confession reads as follows:
In addition to the confession, the State presented testimony from several witnesses, including Reba Box, widow of the deceased, who testified that on September 6, 1975, she was away from her home in Melrose, visiting relatives in Houston. She testified that she called her home at 9:00 p. m. and 10:11 p. m. that evening and spoke with her husband. She testified that at that time everything seemed in order. She stated that she learned of her husband's death in the early afternoon of the next day and then returned home immediately. She stated that personal property, including two guns, a television set, and a stereo, was missing from the house. Many items of property were out of place and some drawers were opened. Empty cartridges and the deceased's billfold were found in the bedroom.
Mrs. Box testified that appellant was her ex-son-in-law. In October of 1973, he had married Carol, her daughter. They were divorced prior to October of 1974. She stated that she and the deceased did not approve of the marriage and had discouraged it. She described one incident in which the deceased and appellant had "exchanged words" after her daughter and appellant separated. She also described appellant's attempted suicide during the marriage and his subsequent hospitalizations prior to the divorce.
Dr. Charles Dale, a pathologist, testified that he conducted an autopsy of the deceased. He testified that the cause of death was multiple bullet wounds to the head. He testified that these wounds were caused by at least four separate shots, and stated that he recovered four flattened lead bullets and a few small fragments from the deceased's head. He further testified that the bullets were fired from "pretty close" range.
C. R. Box, brother of the deceased, testified that he discovered the body of the deceased at about 1:00 p. m. on September 7th. He stated that the deceased was lying on his stomach, with his hands and feet tied behind him with neckties. The telephone receiver was off the holder and on the floor.
C. B. Copeland, deputy sheriff, testified that he arrived at the scene of the murder after the body was found. He testified that he found seven .22 caliber hull shells in the room where the body of deceased was found. He also testified that there appeared to have been a struggle in the living room. He further testified that on September 10th most of the missing property was recovered pursuant to a search of an apartment occupied by Patsy Turner.
Patricia (Patsy) Turner testified that on the night of the murder, she was living at the Hillcrest apartments. That night, after she was in bed, appellant and Mike Molandes came into her apartment with a key which appellant had. She stated that she did not get out of bed, but that the two men made two to three trips, carrying some things into the apartment. She testified that appellant told her that he had gotten the things from his mother's attic.
The State introduced much other evidence to show that appellant had been in possession of the items missing from the Box residence. There was extensive testimony from various witnesses regarding whether or not the bullets fired in the home of the deceased were fired from a pistol belonging to appellant, which Turner found in her apartment. Joe Urbanovsky, a chemist for the Department of Public Safety, testified that an afro-comb, found at the scene of the crime, contained human hair of Negro origin. A cigarette butt, also found at the scene of the murder, was found to contain marihuana.
Calvin Story, a firearms examiner with the Department of Public Safety, testified that bullet fragments recovered from the head of the deceased, as well as seven fired cartridge cases, were submitted to him for analysis. He stated that in his opinion the seven cartridge cases were fired from the appellant's pistol, but that he could not state positively that the fragments had also been fired from the same gun. He stated that the fragments could have been fired from the pistol, but that due to the mutilated condition of the fragments, he was unable to make a positive determination.
Danny Stilley, a witness called by the State, testified that for five years he had been an acquaintance of appellant. He testified that once, shortly after appellant's divorce, appellant had stated that he was going to "get Mr. Box back for what he had done."
Stilley also testified that on the night of the murder he saw appellant twice. Stilley and others were at a party in an apartment. On the first...
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