George Washington Hicks v. State
05-14-00417-CR
Tex. App.Jul 21, 2015Background
- Dec. 23, 1981: Roxanne Jeeves and her 5‑year‑old son Kristopher Korper were found shot to death; physical evidence (hats, hairs, cigarette butts, blue bag, holster, ethyl ether bottle) recovered; no firearm recovered.
- DNA testing (CODIS hit) in 2001 linked hairs from the scene and a cigarette butt to George Washington Hicks; semen from victim’s autopsy also matched Hicks.
- Hicks was indicted twice for Korper’s murder: first in Apr. 2003 (later dismissed in Feb. 2007 after State proceeded on Jeeves’s murder), and re‑indicted Dec. 21, 2011; convicted of Korper’s murder by jury on Mar. 28, 2014 and sentenced to life.
- Multiple eyewitnesses tied an African‑American man (later identified as Hicks) to the scene; family members identified the blue bag and holster as Hicks’s; forensic testimony linked bullets to .38/.357 and confirmed close‑range gunshot wound.
- Hicks raised 13 appellate issues (Batson challenges to peremptory strikes; speedy‑trial, due process, laches; collateral estoppel; suppression/identification; confrontation/Melendez‑Diaz challenge to medical‑examiner testimony; juror contact/mistrial; prosecutorial jury argument; insufficiency of evidence; and back‑time credit).
- Court affirmed conviction in all respects except it modified judgment to add additional pretrial custody credit from the earlier indictment periods to Hicks’s sentence.
Issues
| Issue | Plaintiff's Argument (Hicks) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Batson/peremptory strikes of three Black jurors | Strikes were racially motivated | State offered race‑neutral reasons (questionnaire answers, biases, prior prosecution of spouse) and struck similarly situated non‑Black jurors | Trial court not clearly erroneous; Batson challenge overruled |
| Speedy trial (delay from indictment to trial) | Delay between indictments and re‑indictment/pretrial conduct violated Sixth Amendment | Delay measured from 2011 indictment; reasons included case complexity, file review, defense continuances; defendant did not timely and persistently assert right | Barker factors balanced for State; no speedy‑trial violation |
| Due process (prejudice from delay) | Delay caused loss of mitigating witness (mother) and parole opportunity; State acted for tactical reasons | State showed dismissal/severance was tactical decision to try stronger case, not to gain advantage; court believed State witnesses | No due‑process violation; defendant failed to show substantial prejudice or bad‑faith tactical delay |
| Laches (equitable bar to prosecution) | Long delay and prejudice bar prosecution under Ex parte Perez | Ex parte Perez and Carrio concern habeas and post‑conviction collateral relief; laches not applicable to pre‑indictment delay here | Laches not available to bar prosecution; motion denied |
| Collateral estoppel/deadly‑weapon finding | Prior Jeeves conviction/jury verdict precluded relitigation of deadly‑weapon finding | Prior judgment omitted weapon finding due to clerical/judgment entry issue; jury in Jeeves case had found guilty "as charged" including weapon allegation | Collateral estoppel inapplicable; court concludes jury had decided and trial court should have entered finding in prior case |
| Identification/photographic lineup (suggestiveness) | Photo lineup was unduly suggestive and tainted in‑court ID | Photos matched race/age; witness independently identified; no clear‑and‑convincing proof of impermissible suggestiveness or irreparable misidentification | Pretrial suppression properly denied; in‑court ID admissible |
| Confrontation Clause / medical examiner testimony (Melendez‑Diaz/Bullcoming) | Dr. Barnard testified about cause of death though he did not perform autopsy; this was testimonial hearsay / conduit testimony | Barnard formed his own opinion from autopsy photos and testified from personal observations and expertise | No Confrontation Clause violation; expert gave independent opinion; testimony admissible |
| Juror contact / mistrial | Victim’s father spoke with a juror during break; presumption of harm requires mistrial | Court interviewed jurors; no discussion about case merits; jurors unthreatened and said service unaffected; minimal prejudice | Denial of mistrial not an abuse of discretion |
| Prosecutor’s jury argument (sexual assault timing) | Prosecutor argued sexual assault occurred shortly before murders beyond evidence | Forensic testimony showed semen present and no evidence of washing/bowel movement; anesthetic bottle found; reasonable inference of recent assault | Argument was fair inference from evidence; objection overruled |
| Legal sufficiency of evidence | Evidence insufficient to prove murder beyond reasonable doubt | DNA, forensic, eyewitness and circumstantial evidence showed Hicks at scene, close‑range gunshot, and motive/inferences | Evidence sufficient; conviction affirmed |
| Back‑time credit for pretrial custody | Hicks entitled to credit dating to Apr. 16, 2003 (original indictment) | State conceded additional credit due; court reviewed jail/bench‑warrant history | Judgment modified to add credit for Apr. 16, 2003–Feb. 16, 2005; Sept. 15, 2005–Feb. 19, 2007; and Mar. 14, 2012–Mar. 28, 2014 |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (framework for race‑based peremptory‑strike challenges)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (four‑factor speedy‑trial balancing test)
- United States v. MacDonald, 456 U.S. 1 (U.S. 1982) (Sixth Amendment speedy‑trial applies only while charges pending)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (forensic certificates may be testimonial and implicate Confrontation Clause)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (surrogate testimony that merely relays lab report violates Confrontation Clause)
- Williams v. Illinois, 132 S. Ct. 2221 (U.S. 2012) (plurality: expert’s reliance on external lab results does not automatically violate Confrontation Clause where witness has independent basis)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial hearsay barred absent prior cross‑examination unless witness unavailable)
- Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013) (discussing laches in post‑conviction context)
- State v. Krizan‑Wilson, 354 S.W.3d 808 (Tex. Crim. App. 2011) (due‑process pre‑indictment delay standard requiring both prejudice and bad faith)
- Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013) (standard of review for Batson rulings)