Swink v. State, 63233

• Citation: 617 S.W.2d 203
• Decision Date: 08 April 1981
• Docket Number: No. 63233,No. 3,63233,3
• Parties: Roy Glen SWINK v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 203

617 S.W.2d 203

Roy Glen SWINK v. The STATE of Texas, Appellee.

No. 63233.

Court of Criminal Appeals of Texas, Panel No. 3.

April 8, 1981.

Rehearing Denied June 24, 1981.

Clifford W. Brown, Mike Brown, Ralph H. Brock, Lubbock, for appellant.

Joseph Thigpen, Dist. Atty., Haskell, Robert Huttash, State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at 45 years.

In his second ground of error, appellant challenges the sufficiency of the evidence to support his conviction. The court charged the jury on the law of circumstantial evidence. Appellant, sixteen years of age at the time of the offense, was convicted of having murdered his fourteen-year-old brother, Royce Swink, in Aspermont on January 24, 1978.

Wayne Swink testified that he lived in Aspermont and that appellant was his nephew. Swink was the brother of appellant's father, Herman Swink. Appellant lived one and one-half miles from Swink with his father, brother and stepmother, Ilene Swink. At approximately 4:30 a. m. on January 24, 1978, Swink heard someone knocking at his door. Swink found appellant standing on his doorstep clad only in tennis shoes and a pair of blue jeans. Appellant was excited and told Swink "that someone was in the house and someone was shooting the family." Appellant told Swink that he escaped by knocking a window out of his bedroom and jumping through the window. As Swink was preparing to go to appellant's home, appellant informed him that the door to the house was locked and that the keys could be found in the car which he had driven to Swink's home. Swink related that he noticed scratches about appellant's back and stomach as he stood shirtless in the home.

Swink gained access to appellant's home after unlocking the door. Upon entering the home, Swink noticed the body of Royce Swink in the entryway. Further inspection of the house revealed the bodies of appellant's father and stepmother. All of the victims were dead as a result of gunshot wounds.

Dr. Jarrett Williams performed autopsies upon the three victims. He stated that each victim had died as a result of either a single or multiple shotgun wound. One such wound was discovered to the body of appellant's brother, two wounds to the body of his stepmother and three or four wounds were to the body of appellant's father.

Following the discovery of the victims, appellant was taken to the hospital. Dr. Leslie Serrano testified that she treated the scratches on appellant. She stated that the scratches had been made by a sharp pointed object. There was no evidence of bleeding and no glass found in the scratches. Finally, photographs taken of the scratches depict them to be in a vertical and horizontal pattern.

Sheriff Marvin Crawford of Stonewall County was summoned to the scene of the offense by Swink. Crawford stated that upon entering the house, he noticed an open window in the kitchen area. Potted plants were situated approximately one foot in front of the window and a hanging basket was likewise in front of the window. Crawford stated that his inspection of these plants revealed no evidence of them having been disturbed in any manner. The only other window which was open in the house was the window which had been broken out in appellant's bedroom.

Texas Ranger Marshall Brown, of the Department of Public Safety, testified that he assisted in the investigation. Brown related that in his inspection of the house he could find no signs of forced entry and nothing of value was reported to be missing from the house. There were no bloodstains on or near the broken window in appellant's bedroom. On the night of the offense, the ground had been damp. Outside the broken window, Brown could find no evidence of footprints, handprints or impressions where appellant related that he landed after jumping out of the window.

Brown stated that following a thorough inspection of the house, he could not find the expended shells used in the shotgun. A twelve gauge pump shotgun was found in appellant's closet. The gun was unloaded and wiped clean of fingerprints. The gun was found on the day of the offense and smelled as though it had cleaning solution on it. While inspecting the premises near the house, Brown saw a gasoline tank. Inside the tank, he found twenty-four shotgun shells. Seventeen of the shells had not been fired and the remaining seven had been chambered and fired.

Brown then went to the hospital and obtained the tennis shoes appellant had worn to Swink's house. He searched the car appellant had driven to Swink's home and found a pair of gloves. Brown then transported the physical evidence he had recovered to testing facilities in Dallas.

Brown interviewed appellant at the hospital in an effort to determine what had happened at the house. With regard to this interview, Brown stated:

"Q. Will you please tell the ladies and gentlemen of the jury what he told you?

"A. Okay. Said, that Roy advised that he left Aspermont around 6:15 or 6:30 p. m. going to Stamford to see his girlfriend. She was in the hospital. On the way over there, I thought somebody was following me. I got there, and I went in and told her that somebody had followed me. We sat there and talked until about 8:55 p. m. and I then left and came back to Aspermont. I got back at my house around 9:30 p. m. I went into the house and Dad was watching television. Royce was in the bed listening to his stereo. Ilene was in the bed reading. I went on to bed and went to sleep. Sometime during the night, I think it was 2:30 a. m. I got up and got a drink of water and then went back to bed. Sometime later, I woke up and heard what sounded like gunfire. I got up and put my pants on and turned the light on. I stepped into the hallway and a gunshot went off. Roy then was asked where he thought the first shot was fired, and he advised it sounded like it was in the kitchen and maybe my daddy's bedroom. I heard daddy and Ilene's voices. I remember seeing Ilene sitting up in her bed. When asked about lights being on in the bedroom, he alleged that the light was not on. When asked about other lights in the house, he alleged he thought maybe the light in the utility room was on or it could have been the yard light shining through the window. He then was asked if he heard anyone say anything, and he stated he heard Royce say, I will call an ambulance, and then I heard a shot after that. I went back to my bedroom and put my shoes and socks on and broke out the window with my right hand and crawled through and fell out. I got into my car and went to Wayne's. Roy was then asked if he heard or saw anyone or saw a car anywhere, and he alleged he did not see anyone, hear anyone or see a car when he left the house...."

Allan Jones testified that he was a firearms examiner with the Dallas County Forensic Laboratory. Jones stated that Brown delivered the shotgun and shells to him. Tests conducted on these items revealed that the spent shells found in the gas tank had been chambered in the shotgun which was found in appellant's closet.

Sallie Williams testified that she was a forensic serologist at the Southwestern Institute of Forensic Sciences in Dallas. She related that her inspection of the window screen taken from the broken window revealed no evidence of blood, tissue, or hair. Williams stated that there were splattered bloodstains on the tennis shoes which had been taken from appellant. These bloodstains were of A type blood. Evidence revealed that appellant, his brother and father had A type blood. Finally, bloodstains were also found on the gloves which had been recovered from the car appellant drove to Swink's. These bloodstains were also of A type blood.

Larry Beauchamp, an investigator with the District Attorney's office, stated that he assisted Crawford and Brown in the investigation. Beauchamp related that when the gas tank was discovered at the house, he observed a shoeprint near the tank. Beauchamp stated that in his opinion, the shoeprint was from a tennis shoe.

Royce Stanaland testified that at 3:30 a. m. on January 24, 1978, he arrived at the home of his father-in-law. The home was approximately three hundred yards from the scene of the offense. As Stanaland left his car, he heard what he described as a "popping" sound coming from the direction of the offense. He related that the sound could have been made by the discharging of a shotgun.

Betty Patton testified that she and appellant attended the same high school and dated on a "steady" basis. Patton related that on the night of January 23, 1978, she was in the hospital and was visited by appellant. Patton told appellant that she was pregnant and the couple then discussed possible marriage. Patton then testified as follows:

"Q. Betty, in your conversation with the defendant, Roy Glen Swink, concerning about what kind of family arrangements you were going to make, did you all discuss items as where you were going to live?

"A. We decided that we didn't want to live in Aspermont.

"Q. Did you discuss any financial arrangements that you might make concerning jobs or anything?

"A. No, sir.

"Q. Betty, did Roy Glen Swink at any time mention to you about any inheritance that he might receive?

"A. Yes, sir.

"Q. Who did he tell you would inherit the property of his father?

"A. Him and Royce.

"Q. Him and Royce?

"A. Uh-huh.

"Q. Did he also mention to you in connection with that, anything about insurance?

"A. Yes, sir.

"Q. What did he tell you?

"A. He just said that if anything had ever happened to his dad, that everything would be paid for."

A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of guilt of the defendant. Schershel v. State, Tex.Cr.App., 575 S.W.2d 548; Bryant v. State,...