Stogsdill v. State

• Decision Date: 22 June 1977
• Docket Number: No. 54781,54781
• Citation: 552 S.W.2d 481
• Parties: Kenneth Dee STOGSDILL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 481

552 S.W.2d 481

Kenneth Dee STOGSDILL, Appellant, v. The STATE of Texas, Appellee.

No. 54781.

Court of Criminal Appeals of Texas.

June 22, 1977.

Thomas W. Schueller, Wichita Falls, for appellant.

Timothy D. Eyssen, Dist. Atty. and Roger E. Towery, Asst. Dist. Atty., Wichita Falls, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was assessed at death.

Appellant contends that the court erred "in holding evidence to be sufficient to sustain conviction, when circumstances amounted to 'strong suspicion' and 'mere probability' of Appellant's participation in the offense charged."

The indictment upon which the prosecution was based charged in pertinent part that appellant "on or about the 14th day of April A.D. 1975" did then and there

"intentionally cause the death of Billy Ed Price by beating him and stabbing him with a lug wrench, and that the said Kenneth Dee Stogsdill was then and there in the course of committing and attempting to commit robbery of the said Billy Ed Price. . . . "

The challenge to the sufficiency of the evidence necessarily requires a detailed review of the evidence.

The record reflects that Billy Ed Price was last seen alive on the morning of April 14, 1975, by his brother-in-law, Al Furr, when Furr left Price at the Continental Bus Station in Dallas. Furr testified that Price had over a hundred dollars on his person. On the morning of the next day, April 15, 1975, Jerry Smith and two co-workers were dispatched to an oil lease south of Burkburnett for the purpose of repairing a salt water leak. In traveling to the lease, Smith and his companions crossed a wooden bridge which was in a state of disrepair as the result of loose boards. After completing their task at the oil lease, Smith and his companions stopped at the bridge to "straighten up the boards" in order that further inconvenience might be avoided in crossing the bridge. In the course of doing the necessary repair work, a body was discovered under the bridge. Law enforcement officers were immediately notified. Investigation revealed that the body under the bridge was nude, beaten, stabbed and sexually mutilated. The body was later identified at the morgue in Wichita Falls by Mr. and Mrs. Al Furr as being that of Mrs. Furr's brother, Billy Ed Price.

Dr. Donald Fletcher, a pathologist, performed an autopsy on the body of the deceased at 3:00 p. m. on April 15, 1975. Dr. Fletcher testified as to numerous lacerations and bruises of the body which included a badly beaten head resulting in an egg-shell fracture. Stab-like perforations resulted in two punctures of the heart, tears and puncture of the lungs, pancreas and stomach. A puncture wound in the scrotal area resulted in a penetration of the large and small bowels. The male reproductive organs had been removed by "a very fine, knifelike cut." In response to a question as to the cause of death, Dr. Fletcher stated, " . . . there are several possibilities, but the most likely would be the perforation and tearing of the heart. That would lead to a very rapid death."

Dr. Fletcher's reply to the question of whether the wounds which resulted in death could have been caused by being stabbed with a lug wrench was, "That would be an excellent tool to do what was done." When asked if he had an opinion as to whether the deceased was clothed or nude at the time the wounds were inflicted, Dr. Fletcher answered, "I would think it would be rather difficult to predict. . . . My opinion would be that the body was nude." The autopsy revealed a high content of alcohol and barbiturates in the body, leading Dr. Fletcher to conclude, "My opinion is that had he (deceased) not any person with that level of drugs in his system, in his blood, untreated would die, without any further injuries."

Dean Bohannon, a former employee of the Vernon Police Department, and his wife were walking along the Pease River in Wilbarger County on April 15, 1975, when they "spotted a suitcase and some clothing floating in the river." Bohannon was able to recover the items and took them to the Vernon Police Department. The following day, an investigation of this area of the river resulted in the recovery of clothing and a lug wrench.

A few days later, Deputy Sheriff King of Wilbarger County found a social security card with the name Billy Ed Price on it and some photographs under a bridge on a farm to market road about one and a half miles north of the Pease River bridge.

While en route from Chillicothe to Vernon sometime during April, 1975, Wilburn Hendry at a point "approximately seven miles" north of Vernon observed a boot laying just off the shoulder of the road, "and possibly fifty, maybe seventy-five yards further down the road I noticed another one." Hendry retrieved the boots and turned them over to the Wilbarger County Sheriff's Department. Deputy Sheriff Russell, along with Hendry, returned to the location where the boots were found and a search of the area resulted in the recovery of a leather dress glove.

The Furrs identified the boots, the glove, and some of the items of clothing found in Wilbarger County as having belonged to the deceased.

William Kump testified that sometime during the harvest season of 1975 appellant picked him up at about 8:00 p. m. when he was "hitchhiking" a ride to his motel. According to Kump, they rode around for an hour or two until they stopped at a "roadside park place." Kump and appellant stayed at this location until "4:30 or 5:00, maybe a little later" the next morning. Kump stated that prior to the time they left this location appellant told him that "he wanted to cut my dick and balls off with a pocket knife he wanted to make a woman out of me." Appellant took Kump to his motel and asked him not "to tell anybody about anything that happened, what was said there." The record reflects that these events transpired in and around Vernon.

Steven Laney, a transient, testified he met appellant in the Office Lounge in Wichita Falls on July 21, 1975, around "7:30 or 8:00 o'clock" in the evening after he, Laney, had been drinking beer since noon, that he and appellant later went to another bar and, after leaving the second bar, they "bought some beer and went out towards somewhere south of town." They stopped at a roadside park where additional beer was consumed and Laney "blacked out." The only thing Laney remembered after this point was " . . . being struck from around the right-hand to the rear side with an object." Later Laney was aware of " . . . crawling to the highway through kind of a swamp-like thing, through about two feet of water." The first time Laney "came to after blacking out" was after he had been struck with an object. In response to the question, "Who struck you?" Laney responded, "Mr. Stogsdill (appellant), I believe." Laney stated that he saw appellant and he had "more or less a mad expression." Laney further testified that he did not recall appellant making any advances toward him and although he received severe injuries to his body he did not believe his sexual organs had been "tampered with." John Gibbs, physical director of the Wichita Falls YMCA, saw Laney sitting beside the road a mile or two outside of Henrietta on July 22, 1975. Gibbs related that Laney was clad in one black sock and the most serious of his multiple injuries appeared to be an injury to his skull. Prior to the admission of Laney's testimony, a hearing was held outside the presence of the jury on appellant's motion to suppress the testimony of Laney on the basis that same was inadmissible as an extraneous offense. At the conclusion of the hearing, the court found same to be admissible. Upon the return of the jury, the court instructed the jury that evidence of the extraneous offense was admitted only on the issue of identity. The court's action in admitting the extraneous offenses gives rise to the only other ground of error advanced by appellant, which we find unnecessary to discuss in light of our disposition of appellant's contention relative to the sufficiency of the evidence.

While the State does not point to what circumstances connect appellant with the crime in its brief, it would appear from a review of the record that the prosecution relies on a comparison of casts of tire tracks at the scene and two tires taken from a pickup truck sold by appellant to Edward Lee Thomas on April 28, 1975, and the comparison of known hair of the deceased and hairs which were picked up with a vacuum cleaner used on the interior of said truck on August 12, 1975.

Deputy Inglish of the Wichita County Sheriff's Department took the two tires taken from the pickup (the only two tires which still remained on the vehicle that were on same when appellant traded the pickup on April 28), along with the casts made of tire tracks at the scene of the murder, to the Department of Public Safety Lab in Garland on August 13, 1975.

Terry Crone, a chemist for the Department of Public Safety in Garland, testified regarding the comparison of the tires and casts made of tracks at the scene. The report which he identified as having been given by his office to Wichita County authorities appears to fairly summarize his testimony. It reads in pertinent part:

"On August the 13th, 1975, you personally submitted two Firestone tires and two plaster casts of tire tracks. It was requested that examination be made to determine whether or not either of the submitted tires made either or both of the impressions from which the plaster casts were made. We have completed our examinations and wish to report that both of the tires exhibit a tread design similar to that shown by one of the plaster casts. However, the plaster casts do not show enough detail to identify either of these tires as having made the impressions from which the cast was taken. . . . "

On redirect...