Weatherred v. State

• Decision Date: 21 January 1998
• Docket Number: No. 09-95-225-CR,09-95-225-CR
• Citation: 963 S.W.2d 115
• Parties: Jon David WEATHERRED, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 115

963 S.W.2d 115

Jon David WEATHERRED, Appellant, v. The STATE of Texas, Appellee.

No. 09-95-225-CR.

Court of Appeals of Texas,

Beaumont.

Submitted Sept. 18, 1997.

Decided Jan. 21, 1998.

Daniel W. Hurley, Lubbock, for appellant.

Michael A. McDougal, District Attorney, Gail Kikawa McConnell, Assistant District Attorney, Conroe, for Appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

WALKER, Chief Justice.

A jury convicted appellant of Capital Murder. As the State was precluded from seeking the death penalty in this trial, ¹ appellant's punishment was assessed at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises six points of error for our review. As point of error one complains of the lack of legally sufficient evidence to sustain the conviction, we must address it initially. See Edmonson v. State, 951 S.W.2d 6 (Tex.Crim.App.1997).

In reviewing the legal sufficiency of the evidence, we determine whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard of review is the same for both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 159-161 (Tex.Crim.App.1991). In an attempt, we perceive, to crystallize the distinction between appellate review of legally sufficient evidence as opposed to review of factually sufficient evidence, the Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996), described review of legal sufficiency as follows:

A Jackson review, "viewing the evidence in the light most favorable to the prosecution," is not a factual sufficiency review; rather, it is an analytical tool used to determine whether there is a fact issue at all. (footnote and citation omitted) The Jackson standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." (footnote omitted) Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

In examining the record for legally sufficient evidence to sustain the conviction, we recognize that the jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex.App.--Beaumont 1993, pet. ref'd). Furthermore, a reviewing court's legal sufficiency review is a very limited one. We do not serve as a "thirteenth juror in assessing the evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). Instead, we act only "as a final, due process safeguard ensuring only the rationality of the factfinder." Id.

In the instant case, both the State and the defense presented very lengthy and detailed cases involving witnesses from all over the State of Texas as well as from areas outside the state. However, appellate review of legal sufficiency no longer requires application of the "reasonable hypothesis analytical construct." See Geesa, 820 S.W.2d at 154. Now our basic focus is on locating any evidence, viewed in the light most favorable to the prosecution, which is sufficient to raise a fact issue as to appellant's guilt when presented to any rational trier of fact. In the instant case, a lengthy rendition of the evidence favorable to the verdict is not necessary.

As was the situation in the first trial, the State's evidence of appellant's involvement in the murder of Bill Strawn was almost entirely circumstantial. No physical evidence, such as fingerprints, footprints, hair, or fiber, belonging to appellant was discovered at the scene of the murder. Nevertheless, the State meticulously provided the jury with evidence of appellant's motive (jealousy over his girlfriend's new and more serious relationship with the victim), and appellant's opportunity (eyewitness testimony positively identifying appellant's presence in the neighborhood and in the garage of the house where the victim was discovered on the morning of the murder), to have committed the murder. ²

The testimony placing appellant near the crime scene on the morning the murder took place was significantly compelling in that appellant lived in Kress, Texas, in the Texas "Panhandle," approximately 600 miles from Montgomery County. Furthermore, the State provided evidence that, when initially questioned by Montgomery County authorities, appellant was apparently aware of the specific location where the murder took place. The State also proved that appellant had not been at work on the morning of the murder, that he lied about when he shaved off his moustache, and that he had been asking various acquaintances about locating a "hit man" or "want[ing] some guy killed in The Woodlands." Several witnesses testified to appellant's attempts to provide himself with a false alibi for the morning of the murder.

Further incriminating facts and circumstances in the record before us, and recognized in appellant's brief, include the following:

1. Appellant paid an individual $200 to go to Conroe to "rough up" the victim in hopes that the victim would leave appellant's former girlfriend.

2. Appellant was observed on an American Airlines flight from Lubbock to Dallas on the night of December 11, 1988.

3. A Smith & Wesson .357 handgun was found missing from the residence of a close friend of appellant's between December 10, 1988, and December 14, 1988. Appellant likely had knowledge as to how to gain access to said residence.

4. A box of .357 shells collected from the residence where the .357 handgun was found missing had analytically indistinguishable characteristics from the lead slug recovered from the victim's body.

5. The firearm used to kill the victim could have been a Smith & Wesson .357.

All of the above-described evidence placed in the light most favorable to the prosecution leads us to conclude that any rational trier of fact could have found appellant guilty of the murder of Bill Strawn, in the course of committing robbery or burglary, beyond a reasonable doubt. Appellant's evidence, also quite probative and compelling, can have little if any impact on our review of the evidence for legal sufficiency unless it somehow reflects favorably on the State's case. We therefore overrule appellant's first point of error.

We now move to appellant's third point of error as it will be dispositive of his appeal. ³ Point of error three complains of the trial court's refusal to allow appellant to call Dr. Kenneth Deffenbacher as an expert witness on the issue of photo bias and eyewitness misidentification. Prior to discussing the substantive law on the issue, we must first address the State's contentions regarding appellant's alleged procedural deficiencies as to this point of error. The State initially contends that point of error three is "multifarious and presents nothing for review" in that appellant's complaint encompasses two theories, 1) photo bias, and 2) mistaken identification. As we appreciate Dr. Deffenbacher's testimony, and the scientific literature introduced as part of appellant's bill of exception, mistaken identification by eyewitnesses is caused by several reasons, one of which is photo bias. Appellant's point of error therefore does not present a multifarious issue.

The State then contends: "Appellant admits that he did not object at trial on the basis that the evidence is admissible pursuant to the Texas Rules of Evidence." The State seems to be mistaken as to who was offering the evidence and whose burden it was to object. The record clearly indicates that appellant was tendering Dr. Deffenbacher and his expert testimony. It was the State's burden to object to this testimony which they did in the following manner at the conclusion of the TEX.R.CRIM. EVID. 104(a) & (c) hearing out of the jury's presence:

[The State]: Judge, I object to it [Deffenbacher's testimony] because it is not helpful to the jury. The Jordan case points out that it is speculative. If what he's done before, his studies, don't aid the jury in coming up with a probability that this person is correct in their identification or even biased from the photographs, then it is simply speculative and it is nothing but--it is nothing but confusion for the jury. It's just more information on a subject that is a matter of credibility and common sense for the jury to decide. Even the witness said he can't come up with a probability and even the witness said it is something for the jury to decide and he can't tell them if they are right or wrong from this.

All jurors and all witnesses have common everyday experiences that allow them to--that help them make this type of decision. The decision for the witness is whether or not what they are saying is truthful and not biased based on the photographs they have seen. And the decision for the jurors as to whether the person is credible and whether or not based on their experience, the type of identification that person made is under credible circumstances. It is an issue of credibility and it is an issue for the jury and this witness' testimony is merely speculative and wouldn't aid the jury under Rule 702.

The trial court sustained the State's objection and did not permit Dr. Deffenbacher's testimony to be elicited before the jury. As is also clear from the record reflecting the argument by the State at the conclusion of the hearing, TEX.R.CRIM. EVID. 702 was indeed raised as a basis for the inadmissibility of the testimony. Appellant had no burden to object to anything in order to preserve the issue for appellate review as the State's objection was sustained.

The State's supplemental brief further...