Streetman v. State

• Decision Date: 02 October 1985
• Docket Number: No. 69207,69207
• Citation: 698 S.W.2d 132
• Parties: Robert S. STREETMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 132

698 S.W.2d 132

Robert S. STREETMAN, Appellant, v. The STATE of Texas, Appellee.

No. 69207.

Court of Criminal Appeals of Texas En Banc.

Oct. 2, 1985.

Michael S. McNeely and Robert S. Coe, court appointed, Rosenberg, for appellant.

R.F. "Bo" Horka, Dist. Atty. and Ben Wagner, Asst. Dist. Atty., Kountze, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TEAGUE, Judge.

Robert S. Streetman, appellant, was tried and convicted by a jury for intentionally causing the death of Christine Baker by shooting her with a gun while in the course of committing the offense of burglary of her and her husband's residence. See V.T.C.A., Penal Code, Section 19.03(a)(2). It appears from the record that the burglary occurred because rumor had it that the Bakers kept inside of their residence cash money in excess of $150,000, which rumor also had it that such was obtained from illicit drug dealing. In fact, however, the Bakers only kept in their residence cash and cashier's checks totaling a little over $50,000. However, there is no evidence in the record that might reflect that this money was obtained from illicit drug dealing. None of the money was taken during the burglary. When the burglary-killing occurred, Mrs. Baker was alone inside of her residence.

Because the jury answered in the affirmative the special issues that were submitted to it, the trial judge assessed appellant's punishment at death. See Art. 37.071, V.A.C.C.P.

Although the record on appeal leaves much to be desired, we will affirm the trial court's judgment.

Appellant contends in his first ground of error that "[t]he State failed to prove the corpus delicti because it failed to prove that the death of the complainant was caused by the criminal act of another." Appellant also claims in his argument under his ground of error that the evidence is insufficient to show that the death of the deceased was caused by him.

In his second ground of error, appellant contends that the evidence is insufficient to corroborate the testimony of Gary Wayne Holden, a State's witness who was an accomplice witness as a matter of law.

Because we find them closely interrelated, we will discuss appellant's first and second grounds of error together.

The record on appeal reflects that at the guilt stage of the trial the State presented only four witnesses; Ralph Osborne, the Chief Deputy of Hardin County; Nile Henry Baker, the husband of the victim; Gary Holden, an accomplice as a matter of law witness, who was the "wheelman" for the burglars; and Clint Parr, a person to whom appellant made an admission against interest the day after the offense was committed. Only Osborne and Baker testified concerning the finding of the body of the deceased. Although an autopsy was performed on the body of the deceased, the pathologist who did the autopsy did not testify, nor is his absence accounted for by the prosecution.

After excluding the inadmissible hearsay testimony that came from Osborne, we find from his remaining testimony that after he, Osborne, arrived at the residence of the deceased, he entered the residence, after which he observed the clothed body of the deceased, which was then seated in a leaning position on a sofa with "a large quantity of blood on the right side of her face...." Osborne also observed a circular wound on the right side of her head. Photographs of the deceased depict what is obviously a gunshot wound to her head. Osborne testified that in his opinion the wound he observed on the deceased's head was a contact-type wound to the right temple of her head. To determine the path of the projectile that struck the deceased in her head, Osborne used the "string method" of investigation, from which he was able to deduce that the projectile came from the outside of the residence. In addition to the above, concerning the fact that the deceased was dead at that time, the prosecuting attorney asked Osborne the following question: "Was there any question about whether she was alive or not [when you saw here]?", and, without any objection, he answered: "No, sir, no question at all." Osborne also testified without objection that in his opinion the complainant had not committed suicide.

Nile Henry Baker, who was at the time of the offense the husband of the victim, testified that on the evening of the day in question he left his residence and went to Beaumont. When Baker left his residence, his wife, who was then in good health, was sitting in front of a television set knitting. After Baker returned home, he found his wife still sitting on the sofa, but he immediately concluded that she had been killed by someone, and then left to seek assistance. Baker was asked the following question by the prosecuting attorney: "At that time, [when he saw his former spouse], and subsequent to that [time], you found out that she was indeed, in fact, dead, is that correct?" Without objection, he replied: "That's correct." Baker was also asked by the prosecuting attorney, "Was there anybody staying [inside of the residence] with you at the time that your wife was killed, sir?" He responded: "No, there wasn't." The record, however, does reflect that another person resided in another place that was on the premises, but there is no evidence that might connect or tend to connect that person with the killing.

The record also reflects that when questioned by one of appellant's trial counsel, without objection, Osborne testified that the appellant "told me personally that he [had] shot the lady."

We overrule appellant's first ground of error. This Court has held in the past that to establish the corpus delicti of the crime of murder, or "the body or substance of the crime of murder," the prosecution must establish only two elements, i.e.: (1) the body or the remains of the body of the deceased must be found and identified, and (2) that the death of the deceased was caused by the criminal act of another. ¹ Self v. State, 513 S.W.2d 832 834-835 (Tex.Cr.App.1974). Self overruled this Court's past requirement that the State also must establish a third element, namely, that the accused must be shown to have been the guilty agent connected with the criminal act, to prove the corpus delicti of the crime.

From the above, although we find that the evidence is not as strong as it could have been, it is nevertheless sufficient to establish the elements of the corpus delicti of the crime of murder.

We also find that it would have been preferable to have had the pathologist testify as to the cause of the death. Notwithstanding the absence of such testimony, we find, based upon the record before us, that the admissible evidence is sufficient to establish that the deceased died as a result of a gunshot wound to the head, and that such occurred as a result of the criminal act of another. Cf. Boone v. State, 689 S.W.2d 467 (Tex.Cr.App.1985). ²

Even though appellant's counsel on appeal does not raise the contention as a separate ground of error, we will next address his contention that the evidence is insufficient to connect the appellant to the crime, and will do so in conjunction with his contention that the evidence is insufficient to show that he is the one who actually pulled the trigger of the gun from which came the deadly projectile.

In deciding the issues, we pause to point out that connecting the accused to the crime of murder is no longer an element of the corpus delicti of the crime of murder, but it is an element of the offense of murder which the State must establish beyond a reasonable doubt. Self v. State, supra.

In addition to what we have previously stated, the record on appeal reflects the following:

Appellant did not testify. However, the jury heard testimony that he gave a written confession to the commission of the crime. The jury, also, heard testimony that appellant had given the police an oral statement that was tape recorded. For reasons not explicated, neither the written statement nor the tape recording was not placed in the record. The record does reflect that appellant, David R. Kirkindoll, ³ Gary Wayne Holden, and Johnny Johnson were each accused of committing the offense of capital murder. After being arrested, each of the defendants except Johnson gave the police a written statement, admitting their complicity in the crime. Only Holden testified for the State, and the trial judge instructed the jury that Holden was an accomplice witness as a matter of law. He also instructed the jurors that before they could convict appellant they had to find that his, Holden's, testimony was corroborated by other evidence that tended to connect appellant with the commission of the offense. The evidence that was adduced reflects that Holden did not witness what occurred either on the inside or the outside of the residence. This was because he was only the "wheelman" for the burglars, and at all times was situated at some distance from the residence. In exchange for his testimony, but upon recommendation of the prosecuting attorney, Holden received probation; Johnson was granted immunity and Kirkindoll received a sentence of forty-five years' confinement in the Department of Corrections. As noted, Johnson and Kirkindoll did not personally testify during appellant's trial.

The law is clear: Where an accomplice witness as a matter of law testifies against the accused, and the sufficiency of the evidence is challenged, in making that determination, this Court invokes and applies the rule of law that it will eliminate the evidence of the accomplice from consideration and then examine the evidence of other witnesses to ascertain if there is any inculpatory evidence or evidence of an incriminating character which connects the accused with the commission of the offense; if there is such evidence, the corroboration is sufficient; otherwise, it is not. Art. 38.14, V.A.C.C.P.; Rice v. State, 587 S.W.2d 689 (Tex.Cr.App.1979); Paulus v. State, ...