Skinner v. State, 2-90-266-CR

• Decision Date: 12 August 1992
• Docket Number: No. 2-90-266-CR,2-90-266-CR
• Citation: 837 S.W.2d 718
• Parties: Bennie Aubrey SKINNER, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 718

837 S.W.2d 718

Bennie Aubrey SKINNER, Appellant, v. The STATE of Texas, State.

No. 2-90-266-CR.

Court of Appeals of Texas,

Fort Worth.

Aug. 12, 1992.

Discretionary Review Refused Jan. 27, 1993.

Kenneth G. Mahaffey, Denton, for appellant.

Amy Ayers Adams, Dist. Atty., Donald E. Schnebly, and James S. Cawthon, Jr., Asst. Dist. Attys., Parker County, for the State.

Before JOE SPURLOCK, II, MEYERS and DAY, JJ.

OPINION

JOE SPURLOCK, II, Justice.

Bennie Aubrey Skinner appeals his murder conviction in which a jury assessed his punishment at life imprisonment. We affirm.

In his first point of error, Skinner contends that there is insufficient evidence to prove that he was responsible for Ronald Thomas's death.

At 12:30 a.m. on July 9, 1989, Ricky Thomas (Ricky), Ronald Wayne Thomas, Sr. (Thomas), and several of their coworkers left the grocery store where they worked and gathered in the parking lot near Ricky's car. After approximately seven minutes, the victim, Thomas, walked to his car, which was approximately ten spaces away.

Ricky and another coworker testified that a man and woman got into the backseat of Thomas's car. The man sat on the driver's side, and the woman sat on the passenger's side. Before getting into the car and driving off, Thomas looked back towards Ricky "like something wasn't right."

Jesse Badgett got off work from the grocery store at 12:30 a.m. on the same day and was picked up by his girlfriend. The two stopped at a fast-food restaurant to eat. They testified that on their way home, they saw Thomas's car on the side of the road between the service road and the highway. They further testified that they arrived at Jesse's home three to four minutes later at "probably about" 1:00 a.m.

The officers placed the car on the side of the road later than Jesse and his girlfriend. At 1:43 a.m. Officer Kubicek observed Thomas's car on the shoulder of the highway approximately one-half mile from the grocery store. Subsequently, Officer Spohn arrived and testified he had driven past the offense location about seven minutes prior to Officer Kubicek finding the car and had not seen the car at that time. ¹

Officers Spohn and Kubicek approached Thomas's car and found him dead, slumped over, with his head toward the right front seat area and his feet on the driver floorboard. Officer Kubicek testified that Thomas's body was cool to the touch and his fingers had begun to turn blue.

Based on witnesses' accounts, the police located Skinner and his wife on July 12, 1989 and took them to the police station. Officer Savage testified that Skinner and his wife were very cooperative, and had gone to the police station several times upon request.

The standard of review is the same for direct and circumstantial evidence cases. Butler v. State, 769 S.W.2d 234, 238 (Tex.Crim.App.1989). Nevertheless, the court of criminal appeals has stated: "when reviewing the sufficiency of circumstantial evidence, we ordinarily utilize the outstanding reasonable hypothesis theory as an analytical tool." Madden v. State, 799 S.W.2d 683, 690 (Tex.Crim.App.1990). When a conviction is based on circumstantial evidence, it cannot be sustained on appeal unless the circumstances exclude every other reasonable hypothesis except that of the guilt of the accused. Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987).

For an outstanding hypothesis to be reasonable, it must be supported by some credible evidence. Nilsson v. State, 477 S.W.2d 592, 597 (Tex.Crim.App.1972). For the hypothesis to be outstanding, there must be no evidence to the contrary. Further, the hypothesis must not be out of harmony with the rest of the evidence. Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752 (1984).

Skinner argues that the circumstantial evidence in this case only amounts to strong suspicion because: Thomas left work at 12:30 a.m. and was not discovered until 1:45 a.m.; there was no eyewitness to the shooting; Ricky was only able to state that Skinner looked similar to the man he saw with Thomas; no one could state exactly when the fingerprints were left in the car; the gun offered into evidence was at one time owned by him, but was damaged and never linked in any way to the murder.

I. Fingerprint Evidence

Skinner's fingerprints were discovered on the inside surface of the driver's window and on the lid to the glass dish found on the backseat on the driver's side. Skinner argues that he could have left his fingerprints on the car window and the glass dish prior to the night of the offense.

Skinner's father testified that Skinner and his wife wanted to buy a used car and that every time one was for sale they would go look at it. Debbie Thomas testified that their Buick was for sale, and that at the time of the offense, the car had a "For Sale" sign on it. Ms. Thomas also testified that to her knowledge the Skinners had never expressed any interest in the car.

Ms. Thomas testified that she knew Ms. Skinner because she had grown up a block from Ms. Skinner's parents' home, and that Thomas and Ms. Skinner dated a few times about thirteen or fourteen years ago.

Ms. Thomas testified that one to two weeks before the murder she and Thomas had dinner with his parents and that she had taken food in the glass bowl for supper. After the dinner the dish was washed and left in the backseat of the car.

The standard for evaluating the sufficiency of fingerprint evidence is the extent to which the fingerprinted object was accessible to the defendant. Phelps v. State, 594 S.W.2d 434, 436 (Tex.Crim.App. [Panel Op.] 1980). Thomas's wife testified that her husband kept the doors locked on his car; that she and Thomas did not socialize with Skinner and his wife; and that to her knowledge Skinner and his wife had never been in the car before the offense occurred. She further testified that prior to the offense, the dish had been used at a dinner party, washed, cleaned and put in the car. Likewise, an officer testified that fingerprints evaporate over the passage of time. Thus, there was no evidence that Skinner had access to the inside of the car any other time besides the night of the offense, and there is no other reasonable explanation for his fingerprints being there.

II. The Gun

Skinner claims the .22 caliber pistol offered into evidence was at one time owned by him, but was damaged and never otherwise linked in any way to the murder. He further claims that regardless of any other evidence pertaining to the gun, Skinner gave his father the gun before the offense occurred.

Initially, Skinner's father said he did not know anything about the gun. Finally, he admitted he had thrown the gun into a field. Skinner's father testified that he picked up the gun from Skinner around the first part of July, approximately a week before Skinner was arrested. However, he later changed his testimony to July 1, 1989, after asking when the victim was murdered. The father gave several reasons for having the gun, such as to make handles for it and to shoot gophers. He gave many conflicting stories regarding why he threw the gun away. At one point, he told the police he threw it away so that the grandchildren could not find it. Eventually, he told the officer that he threw the gun away because it did not work.

Skinner's gun was found in a neighbor's field in two pieces. The cylinder was located on January 25, 1990 and the frame of the gun was located on January 26, 1990. Officer Deville testified that the gun frame had rust spots like it had been weather worn.

Skinner's gun was a .22 caliber which fired .22 caliber long range rifle bullets. The bullets used to kill the victim were .22 long range rifle bullets, consistent with Skinner's gun but also consistent with other weapons. The crime lab director testified that the gun found and identified as Skinner's was consistent with and could have been used in the murder; however, because of intentional damage to the barrel of the gun, a positive link could not be established.

III. Identification Testimony

At two photographic lineups and at trial, Ricky identified Skinner as looking similar to the man he saw get into Thomas's car. ² While these identifications were less than positive, Ricky never identified any person other than Skinner. Likewise, Ricky immediately and unequivocally identified Mrs. Skinner as the woman who got in the car with Thomas. Furthermore, the car Ricky identified at the police station as being the one he saw parked next to Thomas's car in the parking lot on the night of the offense was the car Skinner was stopped in three days after the offense. ³

The fact that a witness cannot positively identify a suspect is a matter to be weighed by the jury. Valenciano v. State, 511 S.W.2d 297, 299 (Tex.Crim.App.1974); Moore v. State, 700 S.W.2d 193, 198 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 289 (1986). In a circumstantial evidence case, identification is sufficient, when, considered in relation to all other identification testimony, the conclusion is warranted by the combined and cumulative force of all the circumstances. Livingston v. State, 739 S.W.2d 311, 330 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). In the instant case, the jury had the cumulative force of Ricky's identification of a man looking similar to Skinner, identification of the car, the fingerprints, the time frame of the murder, and the circumstances surrounding the gun to help them identify Skinner as the one who killed Thomas.

IV. Mere Presence

Skinner argues that his being seen with Thomas is not enough to support his conviction, citing Reynolds v. State, 664 S.W.2d 734 (Tex.App.--Amarillo 1983, pet. ref'd); Suff v. State, 531 S.W.2d 814 (Tex.Crim.App.1976); Easley v. State, 529 S.W.2d 522 (Tex.Crim.App.1975). However, the three cases are distinguishable.

In Reynolds, the...