Wood v. State

• Decision Date: 07 October 2009
• Docket Number: No. 03-08-00257-CR.,03-08-00257-CR.
• Citation: 299 S.W.3d 200
• Parties: Roger Doyle WOOD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

299 S.W.3d 200

Roger Doyle WOOD, Appellant, v. The STATE of Texas, Appellee.

No. 03-08-00257-CR.

Court of Appeals of Texas, Austin.

October 7, 2009.

Rehearing Overruled November 2, 2009.

Connie J. Kelley, Austin, TX, for Appellant.

Michael Scott Taliaferro, Assistant District Attorney, Austin, TX, for State.

Before Justices PATTERSON, PEMBERTON and WALDROP.

OPINION

JAN P. PATTERSON, Justice.

A jury found appellant guilty of murder, and the trial court assessed his punishment at thirty-seven years' imprisonment. See Tex. Penal Code Ann. § 19.02 (West 2003). Appellant contends that the evidence is legally and factually insufficient to sustain the guilty verdict, that his constitutional confrontation right was violated by the admission of testimonial hearsay, and that he was erroneously denied an instruction on the lesser included offense of assault. Finding no reversible error, we affirm the judgment of conviction.

BACKGROUND

The body of George Wessberg was found on the morning of January 7, 2007, lying beneath the Interstate 35 overpass at Wells Branch Parkway in Austin. Wessberg was one of several homeless men who lived in the area and "flew signs," i.e., begged for money, where Wells Branch Parkway intersects the interstate highway's service roads.¹ A broken bottle of Hot Damn Cinnamon Schnapps was found near the body, as was a broken umbrella. Wessberg's jacket had been pulled over his head, his pants were pulled down to mid-thigh, and his boots were off. A video of the crime scene taken while the body was still present was shown to the jury. From the condition of Wessberg's body and the disarray of his clothing, police suspected that he had been beaten and robbed.

The State's medical expert testified that Wessberg died as a result of blunt force trauma. The medical examiner opined that Wessberg's injuries were not consistent with a fall or other accident, but were consistent with being beaten with a bottle, an umbrella, a cane, or a length of heavy chain.

Kim Lindell was one of the homeless men who frequented the area. He testified that on the morning of January 7, he had been at a nearby service station when he saw the police at the intersection. Lindell walked over to see what was happening, and he identified Wessberg's body. That morning, Lindell was wearing a jacket stained with what appeared to be blood. Lindell testified that he had scraped his hand and that the blood was his. Lindell was also carrying a knife that had matter of some sort on the blade. Lindell testified that he believed that it was liverwurst. Although Lindell's coat and knife were seized by the police, they were apparently never subjected to any sort of testing.

Lindell suggested to the police that they speak to appellant and Paul Hall at a church located on Wells Branch Parkway two blocks west of the intersection. The evidence reflects that homeless persons were allowed to sleep in a sheltered porch area on one side of the church building, and that Wessberg, Hall, and appellant regularly slept there. Lindell testified that a few days before the murder, he had warned Wessberg to be careful around appellant because Wessberg's VA check was due, and appellant was not well known to the others.

Officers found Hall and appellant at the church that morning, and both men were taken to the police station for questioning. During his interview, which was video-recorded and introduced in evidence, appellant told Detective Manuel Fuentes that he and Wessberg had spent part of the previous day, January 6, flying signs at the intersection. Later, they sat under the overpass and drank. Appellant knew that Wessberg had a history of alcohol-related seizures. He told Fuentes that Wessberg fell and hit his face on the pavement at about 6:00 p.m. that evening, but he said that Wessberg did not appear to be seriously hurt. Appellant said that Wessberg had remained at the intersection when he, appellant, left at about 7:30 p.m.

Hall testified that he also spent January 6 flying his sign at the intersection. Hall said that he left the intersection at "dark thirty" and walked to the church to spend the night. According to Hall, appellant and Wessberg were sitting at the intersection and sharing a bottle of "Hot Damn" when he left. Hall testified that appellant came to the church later that night and that "he was having a fit, real anxious and really messed up." Hall added, "[Y]ou could tell [appellant] was panicky and I didn't know what was going on."

After giving a statement to the police on January 7, Hall returned to the church with police officers to show them the area where he, appellant, and Wessberg slept.² An officer made a video recording, which was introduced in evidence and played for the jury without sound while Hall testified. Hall showed the officers a pair of size 40 x 32 jeans that appeared to have blood stains. Hall told the officers that the jeans belonged to appellant. Appellant told the police, apparently before learning that these jeans had been seized, that he wore size 40 x 32.

Officers swabbed the inside of Hall's and appellant's mouths for DNA testing. Hall testified that appellant told him that he did not want to give the sample and was "real nervous." Hall recalled appellant telling him that "he really messed up" and saying "he would do me just like he did George."

Appellant was arrested on January 9 while panhandling for money in northwest Austin. The police also seized appellant's jacket and the metal cane he was using. The arrest was videotaped. Appellant had what appears to be the same cane with him during his January 7 police interview.

Tina Vasquez testified that at about 9:00 p.m. on January 6, she and her husband stopped at the intersection as they drove home from dinner. There was not a lot of light, but she noticed a man wearing a jacket and a baseball cap "poking" or "prodding" a second man with a cane. (Appellant was wearing a baseball cap during his police interview and at the time of his arrest.) The second man was sitting on the ground. The man with the cane appeared to be upset, but his movements, according to Vasquez, were not violent. Vasquez described the man with the cane as being white, about six feet tall, with brown hair and a moustache or goatee. (Appellant had a goatee at the time of the murder.) Vasquez testified that appellant's cane was similar to the one she saw and appellant's jacket was similar to the one the man with the cane was wearing. Vasquez said that she did not consider this incident to be significant until January 9, when she saw a news article about Wessberg's murder with a photograph of appellant. Vasquez testified that she recognized the photograph as being the man with a cane she saw at the intersection on January 6. Vasquez contacted the police and later confirmed her identification of appellant's photograph. Vasquez was never shown a photographic lineup, and she could not identify appellant at trial.

Jeremy Perez testified that he stopped at the intersection at about midnight on January 6. He said that he saw two men under the overpass, in an area lit by overhead lights. One man was lying on the ground, while the second man stood over him, "prodding" or "nudging" him with a cane, crutch, or stick. Perez said that appellant's cane was similar to the object he saw. Perez testified that he had seen the man with the cane before, at the intersection. He described the man as large, with shoulder-length hair and a goatee. Perez said that appellant's jacket and Wessberg's jacket were similar to the jackets worn by the two men he saw that night. Like Vasquez, Perez thought nothing more of what he had seen until he heard news accounts of the murder. He contacted the police and later selected appellant's photograph in a photo lineup. Perez identified appellant at trial as the man he saw at the intersection on January 6, prodding the second man with a cane.

A third motorist, Aric Reil, did not testify but gave a video-recorded statement to the police that was introduced in evidence. Reil said that he drove through the intersection at about 9:20 p.m. on January 6. He noticed two men lying on the ground. One man, who was propped up on an elbow, was hitting the other man with the heel of his hand. Reil was unsure of his descriptions, but he recalled the man doing the hitting or shoving as being heavy-set, with a full beard.

Blood was found on appellant's cane, and DNA testing showed that the blood was Wessberg's. The size 40 x 32 jeans seized at the church and identified by Hall as belonging to appellant were also shown to be stained with Wessberg's blood. Biological material, but not blood, was found on the waist and in the crotch of the jeans; this material contained a mixture of Wessberg's and appellant's DNA, but did not contain Hall's DNA. Wessberg's blood was also found on the pieces of the broken Hot Damn schnapps bottle and on the canopy of the broken umbrella found near Wessberg's body. A mixture of Wessberg's and appellant's DNA was found on the umbrella handle, but the nature of the biological material could not be determined.

The State's final witness was Johnny Anthony, a jail inmate with a record of felony convictions who was awaiting trial for burglary. Anthony testified that he met appellant in jail, and that appellant told him that he was accused of murder. Anthony said that during the course of several subsequent conversations, appellant told him that he and two men named George Wessberg and Paul Hall flew signs at the intersection of "Wells Branch and 35," a location with which Anthony claimed to be unfamiliar, and slept at a nearby church.³ Appellant told Anthony that on the day of the murder, he and Wessberg panhandled at the intersection, then began to drink and smoke crack. Appellant told Anthony that he hit Wessberg with a "smiley" after Wessberg refused to give him money. Anthony testified that he had been unfamiliar with the term "smiley," and that...