Stoker v. State

• Citation: 788 S.W.2d 1
• Decision Date: 20 September 1989
• Docket Number: No. 70031,70031
• Parties: David STOKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 1

788 S.W.2d 1

David STOKER, Appellant, v. The STATE of Texas, Appellee.

No. 70031.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 20, 1989.

Rehearing Denied Jan. 17, 1990.

Ron Felty, Gary A. Taylor, Lubbock, for appellant.

Terry D. McEachern, Dist. Atty. and Robert W. Kinkaid, Jr., Asst. Dist. Atty., Plainview, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.

Appellant raises twelve points of error. He challenges: the sufficiency of the evidence to sustain a guilty verdict; the sufficiency of the evidence to support an affirmative finding to special punishment issue number two; the admission of a shell casing found pursuant to an inventory search; the failure of the State to establish a chain of custody for evidence found at the scene of the crime; the admission of a weapon seized by a private citizen; the failure of the trial court to grant a mistrial after the admission of extraneous offenses; the admission of the extraneous offenses as being prosecutorial misconduct, the cumulative effect being to deny appellant a fair trial; the testimony of a State's witness who was not listed on the witness list; the failure to appoint an expert witness to testify to the effect of the parole laws; the failure to appoint an expert witness trained in psychology or psychiatry; the failure to grant a mistrial after a comment on the appellant's right to remain silent; and the cumulative effects of the errors committed during trial. We will affirm.

In his third point of error, appellant contends the evidence is insufficient to sustain his conviction. Specifically, appellant argues that the evidence is insufficient to prove that he intentionally caused the death of David Manrrique. Additionally, appellant argues that the evidence is insufficient to prove beyond a reasonable doubt that he was in the course of, or attempting to commit a robbery of the victim at the time of the murder. We will set out the relevant facts upon which the jury could have based their conviction.

Appellant's conviction is based wholly on circumstantial evidence. Gracie Sanchez, an assistant manager of Allsup's Convenience Store, testified that she arrived at the store on November 9, 1986, at approximately 5:50 a.m. to begin the 6:00 shift. She noticed a couple of cars in the parking lot but could not see anyone inside. Two customers were attempting to purchase gasoline but were not being assisted by the store personnel. She entered the store to wait on the customers and noticed that both cash registers were open. She then discovered that the back door was unlocked. Upon further investigation, she discovered the victim, David Manrrique, lying on the floor in a puddle of blood. Ms. Sanchez called the police and her manager.

Upon receiving a telephone call from Ms. Sanchez, Sandra Back, the manager of Allsup's Store, went to the store. After arriving at the store, Ms. Back balanced the cash registers to determine if any money was missing. After the registers were balanced, Ms. Back discovered that approximately ninety six dollars was missing. Ms. Back testified that she had checked on the store at approximately 12:45 a.m. that morning and at that time David Manrrique was alive and working his shift.

Dr. Kitten Sue Kveton testified that at 5:56 a.m. on November 9, 1986, she was on duty at the hospital when she received a telephone call that a clerk at Allsup's had been injured. She proceeded immediately to the store where she found Manrrique lying face down on the floor in the back of the store. Manrrique was alive, but had a weak pulse.

Dr. Kveton began cardiopulmonary resuscitation with mouth to mouth respiration. She continued the resuscitation attempts until Manrrique was transported to the hospital. Upon arrival at the hospital, Dr. Kveton observed bullet wounds to the victim's head, chest, and back. After several attempts to revive Mr. Manrrique failed, he was pronounced dead at 7:08 a.m. Dr. Kveton testified that, in her opinion, the victim received his injuries approximately ten to fifteen minutes prior to her arrival at the scene and that his death resulted from gunshot wounds.

Richard Cordell, the Chief of Police of Hale Center, arrived at the scene just after 6:00 a.m. After securing the scene, he made a search of the premises and noticed a bullet hole in the door to the rest room located at the back of the store.

Captain Mansel Gilmer, of the Hale County Sheriff's Office, assisted in the homicide investigation. During the course of his investigation he inspected the store, took photographs and attempted to develop fingerprints from the cash registers and various other items in the store. No fingerprints were lifted. Captain Gilmer found three spent shell casings in the back storeroom. Gilmer attended the autopsy and observed the pathologist remove two bullets from the deceased's body.

Carey Todd testified that he was acquainted with the appellant and had known him to carry a .22 caliber Ruger weapon. Todd testified that appellant gave him the .22 Ruger so that he could assist appellant in killing two people. Todd received the weapon from the appellant on May 16, 1987, and turned it over to the authorities. ¹

William Albrecht, a special agent with the Federal Bureau of Investigation, testified that he was an expert in the field of firearms examination. Agent Albrecht conducted an examination of a bullet retrieved from the deceased's body and concluded that the bullet was fired from the barrel of a weapon having rifling characteristics consistent with those of the .22 Ruger appellant gave to Carey Todd. Albrecht could not reach a positive identification because the microscopic characteristics of the barrel were changing rapidly. Albrecht also examined the three spent .22 caliber shell casings that were found on the floor of the storeroom where the deceased's body was discovered. Albrecht positively identified the cartridges as having been fired by the .22 caliber Ruger.

Peter Belcastro, a fingerprint specialist with the FBI, testified that he examined the .22 Ruger and discovered two latent fingerprints under the grips of the weapon. After comparing these prints with known prints of the appellant, he concluded that the prints on the weapon were appellant's.

Dr. Ralph Erdmann, a forensic pathologist, testified that he performed an autopsy on the body of David Manrrique. Dr. Erdmann concluded that the victim had been shot twice in the back and once on the top of the head and died as a result of the multiple gunshot wounds.

Appellant told his friend, Ronnie Thompson, about how he "killed the guy working at Allsup's." Thompson testified that appellant described that he had shot the man once in the head and twice in the back. Deborah Thompson, Ronnie's wife, had also discussed the shooting with appellant. Two or three days after the shooting, appellant told Deborah that he "had gotten into debt, and needed some money, and he killed the man in the Allsup's store." Appellant described the killing by stating that he had shot the man three times. Deborah identified the .22 Ruger as belonging to the appellant.

Wayne Reed, a friend of the appellant's, saw appellant in possession of the Ruger between Thanksgiving and Christmas of 1986. Reed testified that Carey Todd told him that he had "set him (appellant) up to take the big fall."

Danny Stoker, appellant's brother, testified that he had seen the .22 Ruger in appellant's possession around Christmas of 1986. Stoker stated that appellant had fixed the trigger on the gun for Carey Todd.

Appellant contends that the evidence is insufficient because it failed to adequately show that the appellant intentionally caused the death of the victim and that the murder was committed while in the course of committing a robbery. This Court will not determine whether it believes that the evidence at trial establishes guilt beyond a reasonable doubt, but rather will determine, after reviewing the evidence in the light most favorable to the jury's verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989).

Traditionally, this Court has applied the outstanding reasonable hypothesis test when judging the sufficiency of the evidence in "circumstantial evidence" cases. This Court has held that the reasonable hypothesis analysis is not a separate standard of review, but is merely a different formulation of the normal standard of review set out in Jackson, 443 U.S. 307, 99 S.Ct. 2781. County v. State, (Tex.Cr.App. 69,793 delivered March 29, 1989). In other words, if the evidence supports a reasonable inference other than appellant's guilt, a finding of guilt beyond a reasonable doubt is not rational. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App.1983).

It is not required that the circumstances should, to a moral certainty, actually exclude every hypothesis that the act may have been committed by another person, but the evidence must show that the hypothesis is a reasonable one, consistent with the circumstances and the facts proved. Carlsen, 654 S.W.2d at 447.

It is undisputed that David Manrrique was killed by a firearm, in the early morning hours of November 9th, 1986, while working at Allsup's store. Manrrique had care, custody and control of the store and the money in the cash register while on his shift. The evidence shows that ninety-six dollars was missing from the cash register after the shooting. Appellant was in debt and told Deborah Thompson he killed the clerk at Allsup's because he...