Pinkerton v. State

• Decision Date: 13 July 1983
• Docket Number: No. 68903,68903
• Citation: 660 S.W.2d 58
• Parties: Jay Kelly PINKERTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 58

660 S.W.2d 58

Jay Kelly PINKERTON, Appellant, v. The STATE of Texas, Appellee.

No. 68903.

Court of Criminal Appeals of Texas En Banc.

July 13, 1983.

Rehearing Denied Sept. 28, 1983.

E. Dean Robert, Amarillo, Michael B. Charlton, Houston, for appellant.

Randall L. Sherrod, Dist. Atty., and John L. Davis, Asst. Dist. Atty., Canyon, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). Trial was in Nueces County following change of venue from Randall County. After finding appellant guilty of capital murder, the jury returned affirmative findings to the two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Appellant was convicted of murdering Sarah Donn Lawrence, a married female, on the night of October 26, 1979, in the course of committing robbery or burglary with intent to rape.

In his first two grounds of error appellant challenges the sufficiency of the evidence to show that he committed robbery or burglary with intent to rape.

David Lawrence, husband of the deceased, testified that he called his wife at 9:30 on the night of October 26, and told her he would be home about 11:00.

Upon arriving home at 11:30 p.m., Lawrence found his wife with blood on the side of her face on the floor of their living room. His wife was lying face-up between the couch and the coffee table. The lower portion of her body was entirely nude. After examining her more closely, Lawrence noticed a large gaping hole in her throat with blood still running out of it. Her legs were spread apart and her panties had been rolled down to the bottom of her right leg.

Missing from the house was a large bowie knife which had been displayed on a rack in the master bedroom. Lawrence had last seen the knife in its place on the rack when he left for work at 3:00 p.m. on the 26th. The deceased's purse was also missing.

Lawrence testified that on the 27th he noticed the bottom of a window screen in the master bedroom had been pulled out somewhat and that there were red stains on the window sill underneath the screen.

Carolyn Sue Porter, an officer in the Amarillo Police Department, took several pictures at the crime scene. Porter took a photograph which revealed a palm print in blood on the inside of the deceased's left leg. State's Exhibit Number 17 is a latent palm print in blood which Porter lifted from the coffee table next to the deceased's body.

Sergeant Claude Free of the Amarillo Police Department took an inked palm print of the appellant as did Raymond Thomas of the same department.

Peter Belecastro, a fingerprint expert with the Federal Bureau of Investigation, compared photographs of the palm print on the deceased's leg with the print found on the coffee table and the palm prints of appellant taken by Free and Thomas. Belecastro testified that all of these prints were made by the same person, namely, the appellant.

Gary Chadwick, another police officer with the City of Amarillo, testified that he saw footprints in the alleyway outside the deceased's residence and followed them to an alleyway on 45th Street in Amarillo, right across from the appellant's residence.

Officer Everett Smith testified that he also viewed the footprints going down the alley from the Lawrence house to a point in an alleyway across from appellant's residence and described the footprints as tennis shoe tracks with dimple patterns on them. Smith stated that he saw the appellant on October 27, at 2:30 a.m. At that time appellant was wearing a tennis shoe with a dimple pattern on the bottom which appeared to match in size and pattern the footprints seen in the alleyway. No measurements were made of the prints in the alley.

Dr. Jose Diaz-Esquivel, a pathologist who examined the deceased at the scene of the crime and later performed the autopsy, testified that the deceased suffered thirty stab wounds or more to her arms, shoulders, neck, back, left hand, face, and abdomen. The cause of death was a stab wound to the neck with transaction of the hyoid bone and larynx and associated asphyxia. With reference to the abdomen wound, Dr. Diaz-Esquivel stated that the introduction of a male penis into the wound would be compatible and consistent with the evidence he found.

The doctor also testified that the deceased's vagina was distended and that something cylindrical in shape, possibly a penis, had been introduced into the vagina after death. Dr. Diaz-Esquivel stated that the stab wounds found on the deceased were consistent with wounds caused by a large knife and could have been caused by a bowie knife.

Officer Ken Ten Brink was the first to encounter appellant three and one-half hours after the murder. Ten Brink went to appellant's home and, not finding him there, searched the surrounding neighborhood, ultimately spotting appellant running across the parking lot of a bookstore a few blocks from the deceased's home. Though Ten Brink chased appellant through several well-lit areas yelling "police halt" and "police stop," appellant would not stop. Ten Brink finally caught up with the appellant as he attempted to climb over a tall picket fence. Appellant had on jeans and tennis shoes and his hair was slicked back.

Investigator Dennis Hendley helped Ten Brink capture the appellant. Hendley said appellant looked as if he had just stepped out of the shower.

Officer Greg Soltis testified that the blood found in the Lawrence house was located on and in the immediate area of the victim's body with a small amount being found on the window sill. When the body of the deceased was moved, Soltis discovered what was later determined to be the brass weight for the missing bowie knife. Soltis observed that the latent palm print lifted from the coffee table beside the deceased appeared to have been made in blood.

John Alley was a fellow inmate of appellant's in the Randall County Jail. He testified that over a six-month period appellant made several admissions of guilt in the deceased's murder:

"Q. What did he say to you specifically, sir, do you recall?

"A. The first thing that I ever heard him say was that he cut her tits off and set them on the television and he started laughing about it and that was it.

"...

"Q. Did he say he had done anything else concerning the killing of Sarah Donn Lawrence?

"A. Do you want the whole gruesome details of it?

"Q. Yes, sir I wish you would tell the jury.

"A. Sexually assaulted her.

"Q. Is that what he said in those words sir?

"A. Well, I'll get to it.

"Q. All right.

"A. He cut her stomach open and f______ed her in the wound until he come and he slashed her throat and he cut her breasts off."

Alley chose to testify because, "I have got a little three-year-old girl and pretty little wife and I'll be damned if I'm going to sit there and see somebody like that go free after he bragged for six months that he done it and it might be my wife or my daughter next time."

In support of his position that the evidence is insufficient to prove an intentional killing during the course of burglary with intent to commit rape, appellant argues that he never engaged in sexual intercourse with the deceased as that term is defined in the Penal Code. Further, "all the evidence points to the intent of the appellant to commit a brutal murder and to abuse the corpse of the victim."

V.T.C.A. Penal Code, Sec. 21.01(3), defines sexual intercourse as, "any penetration of the female sex organ by the male sex organ." There was evidence showing that appellant penetrated the deceased's abdomen with his sex organ and might have penetrated the deceased's vagina with his sex organ after she died.

Even if appellant is correct in asserting that one cannot have sexual intercourse with a dead person, the evidence is sufficient to show burglary with intent to commit rape.

The inquiry must focus on appellant's intent upon entering the deceased's home. Insufficiency of proof with respect to a rape or attempted rape is immaterial when the indictment alleges burglary with intent to commit rape. Ford v. State, 632 S.W.2d 151 (Tex.Cr.App.1982).

The intent with which entrance was made is an essential element of the offense of burglary and therefore must be pled and proved. Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1977). Nevertheless, it is well settled in this State that the question of the intent with which a person unlawfully enters a habitation is a fact question for the jury, to be drawn from the surrounding circumstances. Stearn v. State, 571 S.W.2d 177 (Tex.Cr.App.1978).

In this case, the bulk of the evidence suggests primarily lustful motives on appellant's part when he entered the deceased's house. According to his fellow prisoner Alley, appellant admitted to "sexually assaulting" the deceased. "He cut her stomach open and he f______ed her."

Appellant left the deceased nude from the waist down with her legs spread apart. Somebody, not the deceased, had taken the time to roll her panties down to the bottom of one leg. The killer stuck a cylindrical object, approximately five to six inches in length, into the deceased's vagina. The pathologist testified that the object could have been a penis.

The jury could logically infer from the evidence that appellant intended to rape the deceased when he entered her habitation. His failure to accomplish rape as defined in the Penal Code does not alter his earlier intent.

Appellant's contention that "all the evidence points to the intent of the appellant to commit a brutal murder and to abuse the corpse of the victim" is incorrect. The only physical evidence of sexual abuse after death concerns the cylindrical object inserted into the deceased's vagina. ¹ Even on that point Dr. Diaz-Esquivel did not give an unequivocal answer. He stated that the deceased could have been alive when her...