Zanghetti v. State

• Decision Date: 08 July 1981
• Docket Number: No. 1,No. 58061,58061,1
• Parties: Marian Elizabeth ZANGHETTI, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 383

618 S.W.2d 383

Marian Elizabeth ZANGHETTI, Appellant, v. The STATE of Texas, Appellee.

No. 58061.

Court of Criminal Appeals of Texas, Panel No. 1.

July 8, 1981.

George M. Karam, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., Russell Turbeville and Andy Before ONION, P.J., and ROBERTS and ODOM, JJ.

Tobias, Asst. Dist. Attys., Houston, Robert Huttach, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder, where the punishment was assessed at ten (10) years, probated, following a guilty verdict by the jury.

On original submission the appeal was abated in order that the appellant might be afforded a free transcription of the court reporter's notes, etc. See Zanghetti v. State, 582 S.W.2d 461 (Tex.Cr.App.1979). The appeal has now been reinstated.

In two grounds of error appellant challenges the sufficiency of the evidence to sustain the conviction and in two grounds the appellant contends the court erred in permitting the jury, by its charge, to convict her by finding that the offense was committed in a manner different than as alleged in the indictment and by refusing her special requested charge in regard to this matter.

Omitting the formal parts, the indictment in pertinent part reads:

"... in the County of Harris and State of Texas one MARIAN ELIZABETH ZANGHETTI hereinafter referred to as the Defendant, heretofore on or about June 9, 1975, did then and there unlawfully intentionally and knowingly cause the death of Stanley Steve Zanghetti by striking his head with a glass bottle and by striking his head with a piece of wood and by means and manner unknown to the Grand Jury...."

Appellant contends the evidence was insufficient to establish, beyond a reasonable doubt, her identity as the person who committed the acts as alleged in the indictment.

Allen Smith, a credit manager at a Houston health spa, who had worked at the same company with the deceased in Fort Worth, testified he had spoken to the deceased on Sunday, June 8, 1975, to confirm an interview the next day about employment. The next morning, June 9, 1975, at 10 a.m., he received a telephone call from appellant's daughter, Sherry Shepard, who said her mother had called from out of town and was worried about the deceased, whom she could not reach. Smith was asked to check on the deceased at his apartment. Smith got the impression the deceased might be hurt. At 10:30 a.m. he arrived at the apartment, found the front door unlocked, and entered. He discovered the deceased lying on a couch badly beaten with his hands tied and an orange cord wrapped around the legs. Smith tried to arouse his friend, but received no response other than heavy breathing and snoring. He called an ambulance and the police. Smith later learned the deceased was taken to one hospital and then transferred to the Ben Taub Hospital. That afternoon appellant telephoned Smith, and he informed her that her husband had been seriously hurt and was in the hospital.

On cross-examination Smith stated that two or three weeks before his death the deceased had been very depressed; that he was tired of being a travelling salesman and spoke of going back to become a "hitman" for the mob. Smith thought the deceased was joking. He knew that the deceased had been in a federal penitentiary for jewelry theft, and was on parole or had just gotten off of parole.

Randy Landrum testified for the State. At the time of the alleged offense he was engaged to and living with Sherry Shepard, appellant's daughter. At 3:30 a.m. the appellant called Sherry, and in response to her request, Landrum hitched a ride to the apartment where the appellant and deceased lived to assist the appellant in moving her belongings. The appellant was waiting for him. While helping her move, he looked into the living room and observed the deceased apparently asleep on a couch. The deceased was breathing and snoring. He did not get close enough to observe any injuries though he did see an extension cord around the deceased's legs. Landrum did not see the deceased's hands, but appellant told him she had tied the deceased's hands. Appellant also told him the deceased was planning to leave her. He placed the belongings in appellant's and deceased's automobile and drove appellant to the apartment where he and Sherry lived. Later in the morning he took the appellant to a doctor and to a bank.

Houston police officer G. E. Cones testified he and officer Farrell responded to a call on June 9, 1975 about 10:30 a.m. and went to the deceased's apartment. He found the deceased unconscious, breathing heavily. There was blood that had run off an ear and the deceased's face was somewhat discolored and swollen. His hands were taped together with adhesive tape in a crisscross manner, and an extension cord was tied or wrapped loosely around his ankles. Cones noticed a medicine bottle on an end table near the couch and some boxes of men's clothing and effects in the living room. The back door was secured by a sawed-off broom stick.

Detective David Collier testified he went to the hospital on June 10, 1975, but found the deceased unconscious. He left a message for the appellant to contact him. The next day appellant came to his office wearing a neck brace with bruises on her face. She told Collier she had been beaten by her husband several days earlier. She stated she had slipped some crushed Valium into his coffee in order that she might leave while he was drugged. She denied having tied up or beaten the deceased.

On June 12, 1975, officers Collier and Cones executed a search warrant at appellant's apartment. A tape dispenser, a roll of tape, an electrical cord, two vials, a bottle of Passport Scotch whiskey, and a wooden broom or mop handle were recovered from the apartment.

It was shown that a known fingerprint of the appellant matched a latent print found on the partial roll of adhesive tape "inside the cover of the tape." No identifiable prints were lifted from the bottle of scotch.

Dr. John Dickens, surgeon, testified the deceased never regained consciousness after admission to the hospital; that the deceased was treated for massive head trauma that eventually caused his death. The doctor stated the injuries were consistent with having been hit with a bottle and that a stick or any number of household items or any blunt object were possible.

Dr. Ethel Erickson, assistant medical examiner, testified the main cause of death was blunt trauma to the brain of the deceased and that such injuries were consistent with being struck with a liquor bottle approximately one-third full of fluid or with a stick or with other household items such as frying pans or other pots and pans.

The foreman of the grand jury that returned the indictment testified that the grand jury acting with due diligence was unable to determine what weapon, instrument or object was used to inflict the fatal injuries on the deceased other than it was a blunt object of some kind.

A chemist and toxicologist testified he found no blood on the stick or bottle ( 1/3 full of a liquid) found in the apartment, although he did discover one piece of human hair. The hair coloring was the same as a known specimen of deceased's hair, but identification was not possible as the piece recovered from the bottle was not complete from root to tip.

The appellant denied she killed her husband. She testified that the deceased had just discharged his parole, was tired of his employment as a travelling salesman, and talked of an association with one D. W. Wakefield, whose background was "terrible" as the appellant had a police officer brother check on Wakefield. She related that when she told her husband on a Wednesday night she was leaving him because of this development he began to beat her, dragged her to the bed where he choked her, etc. He removed her set of car keys, cash and credit cards. As a result of her beating, she laid in bed three or four days. On Sunday night as the deceased took a shower she crushed up some Valium pills and placed them in his coffee in order that she might get out the back door. After he fell asleep, she tried to pack a suitcase but could not because of pain. When her husband began to move, she wrapped an extension cord around his feet but did not tie it. She taped his hands in front of him with adhesive tape. She called her daughter, and the daughter's boyfriend, Lundrum, arrived and helped her move her belongings. She took part of the money from her husband's money clip, recovered the credit cards, keys, etc. As she and Lundrum left, she related the front door was locked with the night latch on. She closed the back door, but the lock was sprung and the stick usually used to block the opening of the back door was left on the bed. She pulled the drapes so no one could see into the apartment. She went to her daughter's apartment and later that morning she went to a doctor and to a bank where she withdrew most of the money in a joint bank account. She had her daughter contact Allen Smith and later in the day she learned from Smith that her husband was in intensive care at the hospital. After receiving a message, she talked to Detective Collier and told him she had put Valium in her husband's coffee. She testified she never denied to Collier she had taped her husband's hands and wrapped the cord around his feet.

William Hillman, III, Pamela Byron and Sherry Shepard all testified their mother's, the appellant, reputation for truth and veracity was good.

The theory of the...