Ruben v. State

• Decision Date: 09 February 1983
• Docket Number: No. 63234,No. 2,63234,2
• Parties: Marvin Peter RUBEN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 794

645 S.W.2d 794

Marvin Peter RUBEN, Appellant, v. The STATE of Texas, Appellee.

No. 63234.

Court of Criminal Appeals of Texas, Panel No. 2.

Feb. 9, 1983.

Rehearing Denied March 9, 1983.

Donald L. Boudreaux, Bobby C. Williams, Beaumont, for appellant.

James S. McGrath, Dist. Atty. and John B. Stevens, Jr., Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ONION, P.J., and CLINTON and TEAGUE, JJ.

OPINION

CLINTON, Judge.

Appellant was indicted for the murder of a two year old girl. He was found guilty by a jury that assessed punishment at confinement for thirty years.

In the first ground of error appellant contends the trial court committed reversible error by refusing his request to charge the jury on the issue of specific intent to kill, which he submits is an element of V.T.C.A. Penal Code, § 19.02(a)(1), under which he was indicted. The indictment alleges in pertinent part that appellant did

"... intentionally and knowingly cause the death of Demetriv Elaine Thomas by beating her with his hands and fists and by kicking and stomping her with his feet and by striking her with some instruments and weapons unknown to the Grand Jury and by the use of some means, instruments and weapons to the Grand Jury unknown, ...."

Section 19.02(a)(1), supra states that a person commits an offense if he "intentionally or knowingly causes the death of an individual; ...."

The charge defined "intentionally" and "knowingly" and, using the exact language of the indictment as shown above, authorized conviction if the jury found beyond a reasonable doubt that appellant did "intentionally or knowingly cause the death" of the child. The court refused the following charge requested by appellant:

"Our law provides that to be guilty of Murder a defendant must have acted intentionally in causing the death of a deceased.

Therefore, although you may believe beyond a reasonable doubt that the defendant killed the deceased, yet unless you further find beyond a reasonable doubt that the defendant had at the time the specific intent to kill then you cannot convict the defendant of Murder."

Appellant relies upon Matheson v. State, 508 S.W.2d 77, 79 (Tex.Cr.App.1974), a case involving murder of a small child, for the rule that "where death occurs without the use of a deadly weapon and where there is evidence that there was no intention on the part of the accused to inflict mortal injuries, ¹ the jury must be charged on the element of intent to kill, and the jury must find that intent before it can convict the accused of murder." Matheson testified at trial that he never intended to hurt the child in any way. However, in the present case appellant did not testify, and in his brief he does not point to any place in the record where the defense raised before the jury his lack of intent to kill. ²

It was not incumbent upon the court to charge the jury on the issue of specific intent to kill when the evidence did not raise the issue. The charge adequately protected appellant's rights by authorizing the murder conviction if he "intentionally or knowingly" committed the alleged offense. Womble v. State, 618 S.W.2d 59 (Tex.Cr.App.1981). Ground of error number one is overruled.

Appellant contends in the third ground of error the State failed to prove cause of death and appellant's culpability, and the court should have granted his motion for instructed verdict. This ground is without merit. A physician testified the child died from brain damage due to a fractured skull, an injury occurring within four hours of death. Cause of death was thereby established.

Two women, including the child's mother, lived with appellant. On the date of the child's death the women left appellant alone with her at the house around 6:00 a.m. The child was alive at the time. A few minutes later appellant called an ambulance. When it arrived seven to ten minutes after the call the child was not breathing and had no pulse. Appellant told emergency personnel at the scene that the girl had fallen from a stool in the bathroom. Blood was found throughout parts of the bedroom and kitchen but not in the bathroom. ³ Viewing the circumstantial evidence taken as a whole we find it sufficient. Lindsey v. State, 501 S.W.2d 647 (Tex.Cr.App.1973). Ground of error number three is overruled.

Appellant contends in the fourth ground of error that the court erred in refusing to grant a mistrial after withdrawing from evidence certain bloody clothing due to the State's failure to prove chain of custody. Neither the items nor photographs of them appear in the record. The testimony adduced at trial is not such that it alone establishes prejudice to appellant's case. Since the record is incomplete, nothing is presented for review. Freeman v. State, 618 S.W.2d 52 (Tex.Cr.App.1981).

Furthermore, at the time the State offered them for admission into evidence defense counsel raised no objection to the items of clothing and objected to the photographs only on the basis that they did not accurately depict colors and stains. A State witness had testified to the contrary. The court rightly overruled that objection and, there being no further objection at that time, properly admitted the clothing and photographs.

Bloodstained clothing worn by a victim is admissible if a verbal description of the victim's body and clothing at the scene is admissible. Haynes v. State, 627 S.W.2d 710 (Tex.Cr.App.1982); Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981); Bradford v. State, 608 S.W.2d 918 (Tex.Cr.App.1980). No error is shown in the initial admission of the clothing and photographs.

When questions later arose about the chain of custody of the items the court held a hearing outside the presence of the jury. As a result of that hearing the court withdrew the items and photographs from evidence and instructed the jury to disregard those exhibits and any testimony concerning them. ⁴ If any error was committed in the admission of said exhibits, the court's action in withdrawing them and instructing the jury made it harmless. Furtick v. State, 592 S.W.2d 616 (Tex.Cr.App.1980).

In ground of error number five appellant contends the court erred in overruling his motion to quash the jury panel when it was discovered that some of the panel members had served on a jury in a case earlier in the week in which a different defendant received a thirty year sentence. ⁵ The only similarity alleged between the two cases is the length of sentence. In Byers v. State, 158 Tex.Cr.R. 642, 259 S.W.2d 196 (1953) jurors who had convicted the same defendant in an earlier trial for an unrelated but similar offense were not disqualified to serve during his second trial less than a week later involving different witnesses, time and place. No prejudice is shown in the present case, and this ground of error is overruled.

In ground of error number six appellant complains that because the State failed to demonstrate Patsy Ruben freely and voluntarily consented to the search of her home in which appellant also lived the court erred in overruling his motion to suppress evidence seized therein. In a hearing on the matter the State introduced a waiver or consent to search form signed by her. She...