Criner v. State

s Rеd Arrow urges cumulative error. Red not cover Decedent. policy tive and DTPA cross-point urges Jones’ tort argues the rele- Arrow settlement also limita- the statute of claims are barred damages of recoverable vant to the amount disposition point light tions. disagree. of contract. We for the breach one, not need address error number we was Red that Decedent had a claim Jones points. those by the Protective employee covered Arrow separate and dis- policy. This claim is re- judgment of the trial court aon different insurance tinct from a claim a new trial. versed and remanded for as an inde- policy Decedent’s status where AND REMANDED. REVERSED pendent would be irrelevant. contractor under such a have recovered Jones would of her or failure

policy regardless success claim the workers asserting against company’s em-

compensation carrier for the Red Arrow did not obtain such

ployees.

coverage. is not relevant The settlement breach of

to the material issues of Jones’ contract action. CRINER, Appellant, Roy Wayne set- that the evidence of Jones’ We hold compensation tlement with workers’ Texas, Appellee. The STATE relevant therefore inad- carrier was not No. 09-90-096 CR. 402. missible under Tex.R.Civ.Evid.

jury plaintiffs one of re- heard that Texas, Appeals Court arising $72,000 from a out of ceived lawsuit Beaumont. argu- Mr. Red Arrow’s the death of Jones. Sept. ment that Jones had received a stressed settlement and that the settlement was Discretionary Review Granted good expert Red Arrow’s witness tes- one. 8, 1992. Jan. good tified that it was settlement because not within course and Decedent was employment because the

scope of really not married. These

Joneses were Thus, issues trial.

were contested in this only jury heard that Ms. Jones had

already paid, they heard that the been

amount of the settlement reflected jury. case

weakness of the before We erroneously

find the submitted prejudicial that it was was so probably did cause

calculated to cause judgment. improper of an

the rendition

Tex.R.App.P. 81(b)(1). of error one is Point

sustained. complain of

Points error two and six appel- trial court’s failure to sanction four, three, five, sev-

lees. Points of error

en, evidentiary eight complain nine complains of a

rulings. of error ten Point eleven and

charging Points of error error. ‍‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​​​​‌‌‌‌‌‌​​‌‍sufficiency of the factual

twelve attack findings. Point of error thirteen two points They

brief sets out of error. are follows: The evidence is insufficient to sustain appellant’s conviction it fails to because corpus delicti the offense establish in the alleged indictment.

The evidence insufficient to sustain appellant’s conviction because a rational beyond jury could not have found a rea- appellant sonable doubt that committed offense. initially appellant’s We second address point analy- error as discussion our dispositive sis point of this will of the be case. chargеd appel-

The indictment lant: knowingly by intentionally

... threats, violence, force and cause the penetration organ female sexual Ogg, person spouse of Deanna not the Defendant, by object means of an organ to-wit: the sexual of the defen- dant, without consent of Deanna in the Ogg, and course of same crimi- episode, nal Defendant caused seri- bodily injury Ogg by to Deanna ous striking the said in the head with a blunt instrument nature Jury; which is to the Grand unknown paragraph The trial application Austin, Bass, Ray appellant. for charge jury recited the identi- court’s in the language cal contained indictment. III, Atty., Speers, Peter Kathleen Dist. jury appellant guilty found the Hamilton, Conroe, Atty., Asst. Dist. for charged in the offense “as indictment.” State. note at the outset that the State’s We WALKER, C.J., and Before appellant pre- brief contends that did not BURGESS, JJ. BROOKSHIRE complaints appeal sufficiency serve the for objections various as the specifically comport trial did not motions at OPINION now raises as insuffi- what WALKER, Chief Justice. Tex.R.App.P. 52(a). See, In exam- cient. facts, ining we find that appeal This a conviction for the statement of is an from preserve did indeed the suffi- felony Aggravated offense of Sexual 16, purposes. We April ciency рoint appellate began The trial Assault. during specifically appel- find that this occurred May and on appellant’s oral for instructed ver- guilty. punish- then assessed motion lant (99) immediately beginning years prior dict ninety-nine ment confinement See, case for the defense. Gonzalez Division Texas Institutional Justice, State, footnote 1 at 575 as- 588 S.W.2d Department of Criminal $10,000.00. Appellant’s (Tex.Crim.App.1979); Scott sessed a fine of seized Having tember truck was (Tex.Crim.App.1976). S.W.2d Deputy Self the owner. point, give this with consent of disposed procedural we upon looking inside further testified that presented review facts detailed truck, a small screwdriver he observed bearing in jury, continuously mind that sticking conditioning vent on in an air against appellant the indictment is for the that he Deputy Self testified dash board. Aggravated Sexual Assault and offense to have been the screwdriver remembered not Murder. Depu- type, Phillips-head. a flat-head not 27, September approximately 1986 at On knew ty that as far as he Self also testified victim, body p.m., 7:20 nude never or sub- was checked screwdriver Ogg, Deanna was discovered two teen- any analysis. later jected to The defense heavily in a age boys. body Ranger Stan to testi- called Texas Oldham ap- of Montgomery County area wooded report his includ- fy to the fact that written two and one-half miles from proximately he had received from ed information intersection Houston Road and of Old County Department Sheriff’s Montgomery eight approximately FM miles stating the screwdriver found that Ogg from the victim’s residence. Phillips-head Ranger type. truck awas years time at the of her was sixteen old that no idea Oldham also testified he had lying She was discovered face down death. done, anything, the screw- what was with seventy-five trail to hun- on a one examining the of exhibits driver. In list yards from Houston Road. Blood dred Old find the we are to the instant case amazed was all around her head and shoulders and not mentioned. screwdriver was clothing several articles of her were scat- Howarth, serologist Maurita forensic all around tered her as was contents Department Safe- with the Texas of Public purse. purse itself was never lo- her ty, analyses to testified as scientific cated. blood, semen, sam- and hair conducted on Testimony County from the Harris medi- body and ples from both the victim’s taken Ogg that Ms. cal examiner revealed died supplied appellant. Ms. Howarth was from a fractured skull due to blunt trauma (head pu- samples with of hair known head, multiple to the from stab wounds bic) Ms. Ogg appellant. from both Ms. the neck. neck wounds could have supplied with unknown Howarth was also by a among screwdriver other been combing victim’s hair from of the taken testimony There as things. was no to what taken pubic other unknown hair hair and possible instrumentalities could have been body as unknown off the victim’s well fracture. responsible the skull Further ap- hair from the brown taken truck body revealed Ms. tests done pellant operating day on the Ogg recently had sexual intercourse either com- incident. The results the various or after her death male indi- before with all of hair found parisons showed presence sperm as the vidual was found victim’s; inside the truck did match vaginal and rectal smears. There on both combing of the pubic hair from the vaginal was no evidence of trauma victim, appellant’s hair none of the matched area and medical examiner unable and, fact, reading our of Ms. Howarth’s opinion an as to whether to render that she testimony seems indicate consensual or not. sexual intercourse was pubic unable match one of unknown OggMs. Toxicology tests revealed thаt appellant. Ms. hairs to the victim or either present body in her drugs no or alcohol the blood further testified that Howarth her equally time of death. inconclusive and semen tests assailant. identifying as the for- from a The State elicited family estab- Montgomery County Deputy, Ogg’s Ms. Testimony mer Sheriffs from Self, planned attend Ogg had who testified that he was lished Ms. Charles Saturday, September dance seizing a brown flat-bed a involved Ms. uncle. and her belonging grandmother to with with dual rear wheels truck in a Pitts, Ogg’s grandmother and uncle lived Sep- employer, Jesse away verdict, thirty mobile home about minutes most favorable to the there Ogg’s Ogg’s hypothesis from When is a other Ms. home. Ms. reasonable than accused, guilt then it cannot said mother was unable to drive her to be home, guilt grandmother’s beyond has been shown Ogg Ms. left reasonable doubt. Martin v. foot. home on (Tex.Crim.App.1988). S.W.2d 384 As the Mathes, Testimony Virginia from a clerk example instant is a con- case classic “Stop at the N locat- Go” convenience store evidence, upon viction based circumstantial ed FM at the intersection of Sort- line of cases Chambers/Martin/Butler Porter, Texas, er’s Road established particularly pertinent analysis are to our purchasеd Ms. came store into the jury. the evidence before the cigarettes p.m. and sometime between 5:30 earlier, As ease mentioned the State’s 7:00 p.m. on 27. Ms. Mathes did against appellant hinged extraju- the on the Ogg not see how Ms. Ms. arrived but by allegedly appel- dicial statements testify Ogg Mathes did Ms. that that stated Hooker, Ringo, lant to and Pitts. Hooker going with friends was some and was Ringo that on eve- and both testified the to a in From party Conroe. the state ning 27 September they were both at us, the before Ms. was the record Mathes Rin- working Hooker’s house on vehicles. person last to see Ms. alive other than p.m. and go testified that between 10:00 responsible person the for her death. p.m. night appellant up. 11:00 that drove entirely upon The State’s case was based Ringo appellant stat- further testified that eyewitness recited and tes- above facts something (appellant) ed that he had done timony extrajudicial and on statements al- bad, it real that had turned out all but by appellant legedly made to three oth- right; (appellant) up that he had Hooker, Terry er Dale Michael witnesses: girl hitchhiking off of Park that North and essence, Ringo, Jeffrey Pitts. drunk; girl appellant not was did against apрellant critically State’s case (appellant’s) first girl; describe the his hinged tying alleged statement girl thoughts picking up the after was already existence in order to facts her; (appellant) have sex that he with prove appellant guilty the person drove behind Kidd Road located behind aggravated sexual assault of Dean- this Caney New School District at na point girl got crying; scared and started every As in criminal case where pulled girl (appellant) he down raised, sufficiency of the evidence is the seat the hair of the head. At this reviewing standard for the evidence away he point, Ringo testified that walked viewing light the evidence in the whether disgust, appellant from and Hooker verdict, any rational most favorable less a minute later. then returned than beyond trier of fact could have found returned, he testified that he Ringo When doubt essential reasonable elements say, going “I’m to kill appellant heard the charged. Virginia, the crime Jackson making some you,” appellant with sort 2781, 61 L.Ed.2d 560 U.S. S.Ct. Ringo his hand. testified that motion with (1979); State, 769 Butler v. S.W.2d the, you,” part “I’m to kill State, (Tex.Crim.App.1989); Jackson v. story girl. Ringo appellant’s about the tes- (Tex.Crim.App.1984). The stan S.W.2d appellant’s story. he believed tified that circum applicable dard is to both direct and appellant he Ringo went testified eases. Chambers together stantial evidence grade and that he has school State, (Tex.Crim.App.1986). 711 S.W.2d 240 approximately appellant known eleven A evi appel- conviction based on circumstantial further years. Ringo testified that sustained, however, if the give dence cannot be did or time-frame lant date girl every exclude other circumstances do not to when these events with the (appel- except appellant nor hypothesis place; say that of reasonable Butler, lant) anyone; had guilt. supra at non-consensual sex defendant's (appellant) If, viewing light appellant say nor did the evidence after Jef- for the State was bodily inju- serious The next witness actually killed caused ry anyone. frey employed Appellant Pitts. had been during family logging the Pitts business Terry then called Hooker to The State Jef- when the offense occurred. time Hooker testified that he had stand. twenty-three years frey old at Pitts was years. appellant eight known the for about and had taken over head time trial appellant Hooker testified that first when family’s logging business. The Pitts appellant аrrived Hooker’s house looked in Mont- family great owned a deal of land just gotten as if he had off work as appellant dirty greasy. gomery County heavily and the land was appellant then testified that that he stated Jeffrey Pitts testified that he forested. bad, (appellant) something had done but it the sixth or sev- had known since right; (appellant) turned out all that he grade in On direct examina- enth school. gone Caney to a store in New and had seen tion Pitts testified that on girl having an argument with some he and girl friends of hers and then the took off brother, Richard, working walking appellant picked and that is when Pitts and Richard at a site and that up; walking down 10:00 a.m. or 10:30 Criner arrived at about East; (appellant) FM 1485 that he drove morning. Appellant a.m. that arrived later. Caney in New around behind a school he left Pitts testified that and Richard land;” to they then went “Pitts’ that when p.m. at about 3:00 work area the woods land, got he (appellant) to Pitts’ made the get or to p.m. 4:00 that afternoon order girl perform appellant; oral sex on that he Appel- replacement for a bulldozer. part (appellant) grabbed a off screwdriver stayed logging Ap- lant at behind site. glove compart- dash out of the board or regularly oрerat- pellant had access to and girl ment and if tried told that she to company ed a described as a brown vehicle get away any or he (appellant) make noises one-ton, truck with dual rear flat-bed her; kill (appellant) would that he then This the same that both wheels. vehicle Humble, girl took the Texas to and kicked appellant Ringo described driv- and Hooker her out of the truck. Hooker testified that on ing he arrived at Hooker’s house when appellant girl did not describe how the act- evening September 27. Pitts further ed. appellant Hooker further testified that testified that he and Richard Criner arrived girl did anything or describe p.m. logging site at about 7:30 back at her, appellant that but recalled stated the September 27 p.m. or and that 8:00 “Porter, girl Caney.” was from New appellant they there when arrived. was testified that he did believe repaired Pitts testified that he first appellant’s story. cross-examination, On had and then a conversation with bulldozer appellant Hooker testified that he was sure appellant that appellant. Pitts testified girl walking said the on FM 1485 East was picked up (appellant) had stated that he Drive, and not on North Park and that (appellant) girl; that he took blond-haired girl appellant said that the events with the threatened her girl down the road and Friday night place which would words; had some a screwdriver and have been 26. Hooker testified (appellant) gotten had the screwdri- that he night appellant that used the words “the vent in the ver from air-conditioner ap- that before.” Hooker further admitted driving; (appellant) he truck he was say pellant (appellant) did not that he had girl her there raped had and had left anyone sex with nor did non-consensual got through. when he Pitts testified appellant say (appellant) he ever killed describing when he read an article anyone. during Hooker also testified that murder, Ogg’s in the news- appeared which account the events with spoke paper following Monday, he to girl, jabbing appellant did not make days screwdriver, appellant later and showed several ap- motions with the nor newspaper. Pitts testified phrase, pellant even use the “I’m to (ap- he appellant’s response was that you.” kill drunk, it, (appel- he pellant) pretty did not do and that he he said. He said went lant) up brought through underpass and there was a house, ap- girl walking. pretty He said she was grandmother’s to her whiсh up drunk or messed and whatnot.” Did as a trailer in New pellant described house you response? make Caney. vigorous objections, defense Over to testify Yes, Pitts was allowed to the fact that A. sir. murder, appellant or after a week two Q. you true when made it? Was told Pitts that he because hated women Yes, A. sir. appellant’s mother had left him when Q. I stopped “He said and asked her young. got she I wanted a ride and she carried her road. And she

At the of the State’s direct down the said conclusion Pitts, go grandmother’s.” ap- wanted to her they examination of tendered pellant’s copies of three state- Yes, counsel A. sir. ments, times to authori- various Q. go supposed “She ties, by Jeffrey Two of the state- Pitts. grandmother’s they house instead ments were handwritten statements went the road and had sex and down himself, a tran- Pitts and the other was ‍‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​​​​‌‌‌‌‌‌​​‌‍say nothing; He whatnot. didn’t like copy grand scribed of Pitts’ sworn Ranger.” Texas told the testimony. thoroughly These were used to Yes, A. sir. impeach Pitts’ direct examination testimo- Q. say raped “He didn’t or ny. grand of Pitts’ sworn essence nothing me.” in Pitts’ Yes, A. sir. camp approxi- presence at the from Q. you response? Did make mately a.m. 10:00 10:00 a.m. 11:00 until Yes, A. sir. 1986; p.m. appellant that Q. you it? it true when made Was evеning story Septem- recounted the Yes, A. sir. 27 so must ber the incident with the Q. just “All he told me was he carried Friday, Sep- have occurred sometime late with her down the road and had sex her at 2:00 a.m. or 3:00 tember 1986 around said, and 'What did and I made crack morning; appellant in the talked a.m. home?’, you pick up carry and girl, did picking up appellant but about said, no, I left there. said say nor did not blond-haired that, like we kind of right, all appearance appellant girl’s describe the subject. And that was be- dropped the all; say girl was appellant my dually picked up come y’all fore old, it twenty years but that about fingerprinted it.” following ex- in the truck. Then dark response— you Did make that appel- change place Pitts and between Yes, A. sir. counsel as trial counsel was

lant’s trial Q. Jury and to Mr. —to Grand grand jury testimony over Pitts’ line under Walker oath? by line: Yes, A. sir. Q. Question: “Okay. What Q. you it true when made it? Do recall And was grandmother’s you house?” question from Mr. Walker? Yes, A. sir. Yes, A. sir. that the serious im- The record reflects response you Q. you your Do recall for several peachment of continued Pitts made? examination, the pages. more On re-direct No, A. sir. attempted rehabilitation reiterat- State testimony of the go ing previous me Pitts’ trial Q. saying, Do recall and let you incriminating more version lengthy one. “What because it’s slow any explanation why through story Pitts. As to driving is that he was he told me jury testimony and writ- guys grand his sworn a bunch of Caney. New There was later months statement made two they looked ten arguing at a station

143 (Tex.Crim State, v. 608 Boozer essentially 717 S.W.2d responded Pitts so different These hold that the suffi spoken .App.1984). that a rendition cases excuse experience much different must be measured ciency events was of the evidence events, and from a rendition of charge, written if the instruc against even that, “Just, years ago. It’s it’s been four the State has tion is erroneous —and everything.” hard for me to remember increasing proof. objected to its burden of (sic). State, See, S.W.2d 92 Saunders 1990, pet. grant (Tex.App. Antonio As Aggravated Sexual — San offense 121, 125 Husting v. ed); S.W.2d of Sexu includes within it the offense sault 1990, no pet.). (Tex.App. Antonio State, Perryman al Assault. — San 1990, no (Tex.App. S.W.2d case, — Dallas each of the rendi- In the instant State, pet.); McGahey v. S.W.2d alleg- extrajudicial statement tions ref’d). 1988, pet. (Tex.App. Worth — Fort any lan- edly by appellant, where (Vernon 22.021 Code Ann. § Tex.Penal reasonably appellant related to guage even 1989) provides whаt to five addi amounts girl” having or beaten “the struck elements, any of which turns tional one up hitchhiking, any- in the head or be a Sexual Assault what would otherwise We hold that no body? else on her where This Aggravated an Assault. into Sexual otherwise, fact, rational or could trier (a)(2) is in and classifies list subsection of the evidence any have culled from aggravated the State sexual assault ele- aggravating essential presented the pleads proves perpetrator: Assault; Aggravated ment of Sexual (i) bodily injury at- causes serious or bodily being caused serious tempts cause death of the victim striking her with injury the victim person or another in the course of Where some unknown blunt instrument. episode; same criminal from medical examin- (ii) places or by acts words the victim to how the any other witness as er or death, bodily injury, in fear that serious injury, have sustained such an victim could kidnapping imminently will inflict- or be or, importantly, more how any person; ed on inju- have or caused head caused could (iii) occurring by acts words short, no there was ry to victim? presence of the victim threatens to cause latch rational trier of fact to evidence for a death, kid- bodily injury, serious or aggravating find onto order to any person, napping of or been of the offense indeed element (iv) deadly weapon or uses exhibits proven beyond a reasonable doubt. Jack- epi- in the of Butler, course the same criminal supra; supra. Virginia, son sode; or Furthermore, testing sufficiency ap- charge given, against evidence (B) years 14 younger the victim is than review enunciated plying standards of age. of us to identical conclusion above leads case, very the instant after trier fact could have that no rational of be of the record exhaustive examination doubt all beyond a reasonable us, find any fore are unable to we charged. of the offense essential elements injury bodily caused serious point error is sus- Appellant’s second “by striking the said Dean Ogg to Deanna tained. Ogg head with a blunt instrument na in the disposition of second In view our indictment, ...,” as charged as error, appel- we need not reach point jury in the trial court’s provided to the Because the evi- other contention. lant’s charge. significant This is most insufficient, be the conviction must is dence provide us Benson-Boozer line cases Burks acquittal an ordered. set aside and authority these circum under 2141, States, 1, 437 98 708 v. United U.S. S.Ct. Benson v. 661 S.W.2d stances. Massey, 437 (1978); Greene L.Ed.2d 1 (Tex.Crim.App.1982), cert. denied 467 U.S. (1978). 2151, (1984); L.Ed.2d U.S. S.Ct. 81 L.Ed.2d 372 S.Ct. Ringo testimony Michael appel- and the that the of one judgment The is reversed consent, and demonstrates a lack of acquitted. shows lant is ordered testimony Terry does the of one Hooker. ACQUITTED. AND REVERSED Also, some of the of one Jeff a lack of consent. Pitts demonstrates BROOKSHIRE, Justice, dissenting. Again, agree. Hornbook law teaches that an interme- state, course, further advances The and view appellate diate court must review trier of fact and maintains that a rational of the evidence and the inferences and all beyond a reasonable could have found inferences therefrom in a the reasonable consent, doubt, in to the lack of addition light to the that is most favorable appellant here inflicted serious concept verdict. Axiomatic also is victim, bodily injury on the deceased one judge judges or jury is the exclusive epi- criminal Ogg, during the same Deanna credibility the witnesses and the the sexual assault oc- during sode which testimony weight given to be parallel curred. As a concomitant and jury’s prerogatives this witnesses. argues certainly proposition, the state practice are regаrd under Texas broad facts, these brutal rational under jury can all virtually plenary. The believe easily beyond trier of fact could have found testimony. can of one witness’ a reasonable doubt testimony. The all of a witness’ disbelieve bodily injuries to caused the serious empowered Texas is also to believe by striking her on or in the head with testimony and part of a witness’ disbelieve Ogg died. instrument. blunt part of the same witness’ testimo- another importance in ny. long accepted A rule of argues that a rational trier The state also cir- appeal is that when cases involve this beyond a reason- of fact could have found each fact cumstantial evidence (that is that the unnamed victim able doubt point need not di- shown or demonstrated name of the victim was say, the actual guilt of the rectly independently admissions); appellant’s in the not used and overall ef- defendant. The cumulative nevertheless, appellant’s admis- these same of all of the circumstantial evidence fect determined that have identified and sions may incriminating facts well be and all the victim was one verdict and the to sustain the sufficient take the arguments position state’s individual, neces- convictiоn and even description of the following tact: or the offense sary elements of the crime admission young evidence, may proved by circumstantial be description of the dead victim matches the evidence, circumstan- some direct in which description of the area Ogg; the evidence. The essen- tial and some direct picked up the that he appellant admits are sometimes elements of the offense tial Ogg’s area in which girl corresponds to the phrase “corpus to the Latin referred found; appellant’s ad- corpse was prove can delicti”. Circumstantial raped matches mission that beyond a reasonable doubt. the offense examin- by the medical findings ascertained intercourse; Ogg er that had sexual that corrob- is some evidence If there appellant ad- in which the statement, the time frame then the confession or orates a young admissible, sexually assaulted statement, may mits that he or confession limits frame or time matches the time in the establishment of itself be used missing; important- Ogg in which was or of the of- of the crime corpus delicti he, him- ly, appellant’s admission argues that advances and The state fense. self, young girl with a threatеned the had facts could have trier or finder of a rational with was on or connected screwdriver that consent on the of lack of the element his truck was air-conditioning vent of beyond a reason- victim herein part of the by the supported and sustained logically and to the the sexual assault doubt to able posi- was finding screwdriver that In of a agree. sexual assault. aggravated air-conditioning hanging in the sketch, tioned in or briefest, argues state thumbnail Virginia Mathes type of cigarettes. ticular having used vent of the truck been transaction because remembered question. in the date cigarettes Deanna that had Mathes told Ogg clearly Miss The record reflects Dean- supposed sold to her. to be were six- September 1986. was died on She a cigarettes were na said the ninth age. was in years of She teen completed. friend, so the transaction was of the New Caney School grade at New was time that she said at that Deanna District. The Independent School Caney cigarette transaction a party. identi- testified. She mother of the victim sunny light still place while it was photo- 2. It No. was a fied State’s Exhibit Mathes’ recollec- best outside store. daughter, the deceased Dean- graph of her pack a cigarettes were was that the tion photo- testified The mother na. given Marlborough Mathes had Lights. accurately represented and graph truly and detectives about to certain this information a how Deanna looked. It was showed Mathes days the transaction. two after objec- It came in picture. without school de- with two male a had had conversation picture depicts young a The school tion. explana- a gave further tectives. Mathes pho- blond or blondish hair. girl with ciga- why as to she remembered tion days her prior three tograph taken Marlborough Lights. The rea- rettes were The mother’s name was Patricia death. twisting these son Deanna plans Deanna had made to attend in hands while Deanna cigarettes her grandmother, maternal dance with her complete the transac- waiting for Mathes uncle, Mi- McCoy, along Mrs. with with playing to be Deanna seemed tion. McCoy. spent deal of good Deanna chael pack cigarettes. this grandmother’s house. time at her maternal victim, Deanna, for her had started Ogg daughter Patricia described party go to then grandmother’s house having strong temper. at Deanna times a accompany was to a dance. Her uncle or like act could “wildcat”. fact, grandmother and the victim. stand one The state called to witness victim, spoken Deanna, had Virginia A. Mathes. She resided a.m. time around 11:00 Michael some uncle Mathes Texas before 1987. had lived It September was after Apartments for Oak uncle Porter White conversation with year. Stop-N-Go Mathes had worked at store to obtain went about Marlborough Stop-N-Go Lights. Stop-N-Go. The was located Farm to Market Road and Sorter’s more, later, slightly two hours About Porter, This Texas. Road. location was boys who year-old there were two fourteen Virginia recognized Deanna Mathes were riding bikes. These bikes were their through recognized the victim riding They were described 4-wheelers. Exhibit No. 2 which was a school State’s departed off of logging trail which near a referred photograph of the victim as These fourteen Houston Road. two an Old at the Ogg was a customer above. Deanna Kyle boys identified as Carri- year-old were came in conve- Stop-N-Go. Deanna this Carrigan’s Kyle Charley Cantrell. gan and week. store three times a nience in Mont- actually some land owned uncle recognized person this Mathes gomery County being recognized the name as riding property on the boys name seeing De- Kyle Mathes recalled familiar by Kyle’s Deanna uncle. was owned early September 1986. Road. In the in the store on Old Houston anna with the 27th, Saturday, incident. Carri- evening recalled the the definitely hours of She riding in on some Deanna to wait were busy. gan was had and Cantrell Mathes to set. just beginning to have Deanna seemed The sun was line to be served. trails. girl. body of a in the boys was discovered happy-go-lucky attitude. Deanna The two a lit headlights on his 4-wheeler Kyle 5:30 had his sometime between Stop-N-Go at the to down headlights his up. Kyle turned p.m. 7:00 but not later than p.m. ground in a better object par- on evening. buying was a see early light. Kyle going was to sex Kyle went back to a road. met truck that he have He lady a on road. then went to his with her. Criner turned down behind place persuaded place own father’s and he his a de- Kidd Road which was behind (Kyle) him to where Caney father to follow back District. scribed the New School stayed body on the Kyle girl was located. Criner stated the was scared and start- black-topped gave he detailed pulled road but di- crying. ed Criner said he his the location of rections to father to girl hair down the seat girl. body young In the mean- head. time, lady gone police. to call the had Ringo disgusted then became when Cri- up. A He a peace officer showed was pulling ner down in the described deputy This arrived deputy sheriff. about Ringo her head and seat the hair of discovery minutes later. The or 15 away shortly But momentarily. walked young body place took Ringo thereafter walked back to where Cri- p.m. 7:15 around Ringo ner had left Criner’s immedi- was. Ringo testified he Michael knew something less a presence ate than Roy Criner, appellant, Wayne since about return, he Upon Ringo’s minute or so. eighth grade Ringo school. was say going that he to kill heard Criner was years age about fourteen at time. a girl and then Criner made motion Terry Ringo also knew Dale Hooker. telling still with his hands. Criner was ap- that he knew the Hooker testified story episode the same and the same about pellant Ringo definitely Criner. remem- Ringo years was 21 or 22 events. about seeing partic- Criner on the bered age Ringo at trial date. said Criner evening September 1986. ular Cri- joking. Be- laughing was not and was not pick-up ner maroon driving was Chevrolet demeanor, Ringo believed cause of Criner’s ton, truck, onе with a flat bed attached to was the truth. that what Criner had said as a it. The truck was further described very strong Ringo Criner had testified that on “dually” pick-up truck with dual wheels strength. Ringo had told this physical It the rear. was a work truck there law enforcement offi- same narrative to a Ringo tools on it. knew that of Hoot Gibson. cer with colorful name actually belonged family known truck to County Montgomery Hoot Gibson was family. Pitts He knew where the as the deputy. family family The Pitts was Pitts lived. Terry testified to narrative engaged business. same as the events that was about the p.m. up at 10:00 drove Criner Ringo. given by Basically, Cri- narration Ringo up to 27. Criner came to Terry Hooker that Criner went ner told Terry. The location and also girl, Caney, picked up a in New store lengthy A con- Terry’s house. somewhat school, back of a drove around to the spoke Roy Criner first. versation ensued. by the some land owned then drove thing said was that The first Criner family. Pitts (Criner) something Rin- real bad. done cross-examination, Ringo also testi- On something” go that this “real bad testified “it out had said that turned fied that Criner day accord- earlier same had occurred ambiguous that was an right”. all But ing The statements to Criner. weigh. for the and it was statement' place, probably between 10:00 Criner wаs not elabo- Importantly, word “it” p.m. September p.m. and 11:00 upon. within the well- It was rated appellant said was that thing next upon this as prerogative to look established (Criner) picked up girl hitchhik- “this or a building type of statement a defense (according Rin- ing”. Criner then stated self- the nature statement that thought thing go) the first Criner statement, being actu- as well as justifying (Criner) have sex with that he evidently dis- ally self-serving. that those were Ringo testified girl. jury could The credited this statement. spoken and Criner. words used exact right" out all “it turned have believed that got stated that he Criner also purposes meant for of Criner—but defi- Criner initiated the conversation ensued. nitely right” Ogg, Terry not the dead Hooker that “all conversation. stated (Criner) girl had also stated that the that had victim. Criner Criner said he done some- bad, vigorous right. Even under but out thing was drunk. cross- it turned all repeated Ringo Roy Again, examination that Cri- the word “it” was elaborated going language ner had said the words “I’m to kill not clear as to what and this actually referred you” toward These death the word “it” to. —directed again. Terry were girl queries words directed towards the that above are asked Hooker, testimony hitchhiking. had been it not in his before the Query: Was sworn power that prerogativе jury, within and stated Criner said substance weigh (Criner) this evidence and to that he to a store in New determine that went girl. picked up young Caney what meant was that sex turned a Criner incriminating right out all not made additional statements Query: for Criner? But and confessions. Ogg? for Deanna jury was redirect, Under this record the also well Ringo again On that testified prerogatives its established to be- (Criner) within basically Criner had said he give lieve and full credence to the state- kill had would that Criner made to the ment killing described the of his a motion you”. “Pm kill a jabbing hand as motion. This girl having an previously young observed a put was also in a statement that had been argument with some friends hers previously Ringo trial. before walking. point At then she off This evidence was not a fabrication. recent Terry up. Hooker testi- Criner And the jury could so determine. they said then down fied Criner drove Terry Dale Hooker was called to the on to land. and went the Pitts’ find was, He stand the state. at the time Terry Hooker as fol- record testified trial, Cleveland, a He resident of Texas. lows: Ringo. They He knew was married. Mike Q. right. did All What else Mr. Criner had known each other for twelve say? say he next? What did years. They were friends. Hooker knew Well, land, they got to A. when Pitts’ Roy eight years. Criner for about sеven or some perform he made oral sex. September In Terry Hooker was location, Q. getting did Prior to to that living Terry parents with his Porter. anything Mr. Criner describe else Sep- the evening remembered happened the truck? parents’ tember He was at his Yes, grabbed A. sir. He said he a working home on his truck. It was about off the dash out of the screwdriver p.m. Mike 9:00 or sometime thereafter. compartment. really I don’t re- glove Ringo Terry him. While was with member that. Ringo up in a together, Criner drove Q. grabbed He said he screwdriver. truck, being company work truck. The screwdriver, if do with What brown, dually, truck was truck. flat-bed he said? dually it dual possessed A truck meant her, know, you It was a A. He told she tried wheels the rear truck. noises, away belonged get The truck to the or made he’d one-ton truck. family. Pitts kill her. then, Q. you ref- Now when make this Terry young man Ringo Both knew a land, specific to the Pitts’ erence family. was member of the Pitts who you explain location or can young man was named Jeff Pitts. What that mean? jury? does Roy Criner was work- said, Well, Pitts’ land. A. that’s what ing family doing for the Pitts talking really where I don’t know he’s got dually one-ton

work. Criner out about, they have lot of land. because appeared He somewhat flat-bed ‍‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​​​​‌‌‌‌‌‌​​‌‍truck. right. area? lengthy Q. A All In what dirty greasy. somewhat A. Montgomery County, Highway Montgomery all on the around States County map. map Porter. Pitts identified on the being Q. logging operations where the right. you’re All This land re- to, land, defendant, Criner, ferring the Pitts’ what kind of— conducted. you how it? working would describe with in that area at the Pitts Wooded, know, thick; logging operations. Pitts also identified on you good A. log- (Emphasis added) map He ging Sorter’s Road. located land. same. It was also known as the Sorter’s- Significant important it is to stress Road. McClellan rules evi- under well-established dence in Texas stan- well-established Crucially importantly, Pitts’ testimo- rights, dards of the duties and ny part is this: part can believe of a witness’ testimo- Q. question. Af- may You answer ny parts and disbelieve other of the same dozer, you ter finished on the did work testimony. witness’ had stated that Criner you have an to have a conversa- occasion girl Caney. came from or New Porter then, tion, Roy with Criner? Terry thought the statements were A. Yes. But, nevertheless, perverted”. “kind of Q. right. thing All What’s the first Terry believed what Criner had said. Ter- you? that he told ry prior, given had written statement to a do, you did A. I’d asked him what he official, law enforcement which statement said, know, night. up And he testimony. with in-court consistent his a girl. Pitts, 23-year old, Jeff also Q. right. say give All he or did he Did stand. He testified was work- that Criner give indication any indication—did he ing family’s logging opera- him on his with he like? Did as to what looked Pitts tion in the fall of 1986. had known appearance any way? her describe grade. Criner since the sixth or seventh Pitts the work truck which the described picked up he A. He said had blond- brown, flat-bed, It appellant drove. was a girl. haired gave dually one-ton Chevrolet truck. Pitts Q. you tell Okay. did he after What testimony. further that? him Criner had told had He took her down road and A. (Pitts) picked up a that he had blond-haired her a screwdriver and threatened with and had taken her down road and had some words. screwdriver; had threatened with Q. down road and Okay. Took her raped had her and then that he had he a screwdriver? threatened got through. left in the road when he Right. A. Jeff Pitts described in detail location of tell, Q. he you he where Did indicate Montgom- family’s logging operation his got the had screwdriver? vicinity ery County. It was in the of Port- er, The logging area. known as the Porter it A. He said was on air-conditioner vicinity operation of Farm vent. Houston Road Market Road The Old Q. in? the truck he was Of with Farm to Market Road intersected Right. A. family owned 1314. The Pitts about Q. you he about that threat- After told working men acres this location. screwdriver, else what ening her with a Pitts from off of Sort-

went into the land say? did recognized er’s Pitts identified Road. They had sex. A. Market of Farm to Road location Q. you, indicate right. Did he All par- 3 which was a on State’s Exhibit No. that? he describe any way County —how map Montgomery tial described having sex? you he tell What did Map. Pitts also identified Key had and he They stopped and sex A. Road 1485. He location Farm Market got through. left her there when United recognized and identified stab wounds to puncture wounds or he told Q. word did he use when What he had sex with her? the neck? you that raped Yes, A. He had her. A. sir. Q. right. All That cause of death doctor, exam- being a medical

A medical resulted or been apparently would have iner, as a the victim died testified that hemorrhage? due to a the result of fracture to her skull result of a head, multiple to blunt trauma to A. That’s correct. multiple neck. These stab to her wounds spermatozoa A certain amount of about neck consisted stab wounds to her in her vagina in Deanna’s and also The doctor testi- puncture wounds. eleven from the medi- rectum. There is evidence Parungao. Dr. This doc- fying was named death, prior just or cal examiner that, a opinion, in his screwdri- tor testified or at the time of her prior to her death puncture caused ver could have death, had been en- sexual intercourse Parungao had served as an wounds. Dr. intercourse was with gaged in. The sexual period of examiner for a assistant medical further testified person. a male The doctor years. part It was of his more than nine Ogg’s penetration of Miss that there was and functions to conduct au- official duties penis a male sexual vagina by a male or autopsies was topsies. performance The he deter- organ. explained doctor how Through this major his functions. one of further ex- fact. The doctor mined this was intro- expert medical examiner there plained: No. 9 Exhibit duced into State’s then, Dr. Q. you, Doctor. Now Thank autopsy body on the was the which report indicates Parungao, I believe the including an attached toxicol- Ogg, anus, in the spermatozoa that there objection to this ogy report. There was no well; rectum, correct? is that into report and the same was admitted primary purpose of an au- A. That’s correct. evidence. The doctor, is, course, according to the topsy any kind of cer- Q. you say with Can to determine the cause of death. The exactly spermatozoa tainty how of a cause of death set out as a result phosphate got into the rectum? acid skull due to a blunt trauma fracture to the sodomy was things. That a A. Two multiple head and also to stab whatever, or the male or- performed or mul- of the neck. There were also wounds ejaculated in the anus and gan inserted According autopsy tiple contusions. vagina could the one have there or fe- report, Deanna was Caucasian run the anus. p.m. male. She was found dead about 7:42 words, if there Q. right. All other 27, 1986, on an old involving intercourse only sexual scalp was covered with blond road. vagina, possible it’s penetration of multiple There contusions hair. were run down fluids could have that those ear, posterior auricular about the left rectal area. into the was a The irises were hazel. There area. A. That’s correct. upper mid-portion contusion laboratory results demonstrated lip. serologist, Maurita Howarth A forensic deceased’s was found that no alcohol the Texas employed testified. She was body. negative result There was Safety. spe- She Department of Public test, screening to bile and drug both as six serology for almost cialized in forensic present. Dr. Pa- opiates No blood. degree in had a Bachelor’s years. She rungao as follows: testified serologist a se- chemistry. This received No. Q. Parungao, Dr. on State’s Exhibit sample, pubic hair sample, a blood men picture that a of? what is scraping, pulled hair fingernail sample, a samples, showing all of sample, the neck. That’s and oral smear A. That is Roy the neck. Ho- hemorrhage around from Criner. which were obtained she determined testified that warth autopsy, Q. right. All In Dr. Jordan’s type 0. to be blood type of Criner causes of death blood he list as one of the Yes, he is. Criner was a se- A. She determined Hence, expect would find cretor. was, course, other There much evi group substances Criner’s certain blood lengthy in this record which included dence expect the She would to find seminal fluid. The numerous exhibits. Ninth Court of quantities of thing in the same evidence, is the the Appeals to consider analyze able a saliva. Howarth exhibits, in testimony light and the group rectal She found blood sub- swab. jury’s is verdict. At most favorable The blood stance that rectal swab. appeal proper to level it is review this of group H. The rectal swab substance was sufficiency light evidence in the Ogg. The taken from Deanna serolo- prose and judgment favorable to the most 0, gist type to blood testified as presumption in the light cution and not person group will secrete substance blood presumed of innocence. Criner is here H, rectal swab which was found State, v. Templin See 711 innocent. ascertain- from the rectum of This is (Tex.Crim.App.1986). 30 After S.W.2d person if involved is a secretor. able viewing analyzing and the record 0, type And Criner was a secretor. blood light that is most favorable to swore, gives group the blood sub- Howarth verdict, appeal this and at level —without only. H record recites this: stance The innocence; existing here presumption Q. Type All blood right. What about by this inquiry must be made then 0? any rational to the effect that could Court group A. will secrete blood sub- They elements of trier of fact found the essential stance H. beyond offense a reasonable the indicted Now, Q. right. again, All once v. 443 U.S. Virginia, doubt. Jackson group will be found blood substances (1979); 560 99 61 L.Ed.2d Cor S.Ct. fluids, will, you people who body (Tex.Crim. State, 698 107 dova v. S.W.2d right? is only; are secretors State, 680 S.W.2d App.1985); Bonham v. correct. A. That’s State, (Tex.Crim.App.1985); Lopez v. gives Q. right. Type All blood And (Tex.Crim.App.1982). 630 S.W.2d 936 only. H group substance the blood trier of fact could conclude that a rational A. That’s correct. elements found the essential have then, Q. All in the rectal right. beyond Now aggravated crime of sexual assault you analyzed came from swab a reasonable doubt. Ogg, body of Deanna what blood my opinion, testimony of wit- you find? group substance did above, nesses, as out demonstrates set group H. A. I found blood substance finding a rea- guilt beyond such valid then, Q. right. All if the defen- Now of fact. by rational trier sonable doubt dant, is type Criner’s blood Roy so this jury so believed secretor, testified, if he is a you’ve trite, compelling it is a It is but case. consistent, then, testified, is it you’ve accept may or jury in Texas truism body he left some- from a fluid that any all of the reject or you find the blood place, that would State, Madrid See one witnesses. H? group substance And, (Tex.Crim.App.1979). 595 S.W.2d Yes, is.

A. it course, prerog- is within its well any inconsistencies con- ative resolve If, however, the blood Q. right. State, All evidence. Jackson flicts itself, H is found group substance (Tex.Crim.App.1984). 672 S.W.2d possibility, eliminating other given the evidence is sover- weight to be type and secretor status does what blood jury. state- function of trial eign that indicate? indeed, the confessions—made ments— Pitts, along secretor. It indicates an O Ringo, A. Criner evidence, coupled with physical Roy Q. Criner an 0 right. All And testimony of the medical examiner secretor? Rehearing). Well established (Opinion testi- evidence and serologist constitute circumstan purely that in and evalua- also is the rule ample probative force mony of upon the jury. This eases the burden tial evidence sustain the verdict tion to that ex present the exhibits. prosecution is to conclusion is reinforced hypothesis well within its reasonable every other Simply put, the cludes guilt. to find and But the rights prerogatives the defendant’s powers, other than appellant raped the ex present evidence that determine that need not state her will and against every forced young girl every possible or conceivable cludes death as well that her to have oral sex of the defendant’s hypothesis except that by a blunt trauma to brought 621 S.W.2d guilt. See Hooker v. by piercing, penetrating head and her (Tex.Crim.App.1980). young Ogg. to the neck of A wounds stab parts or essential The essential elements certainly determine and find that

jury could he did against Criner are: of the indictment been was and could have the screwdriver threats, intentionally knowingly by and injuries Ogg’s the to inflict sеrious used violence, penetration of and cause the force the evidence in this case as well neck under Ogg, a organ of Deanna the female sexual incriminating the statements and as under spouse, by means of the person not his Un- by appellant. confessions made the defendant, namely, organ of the sexual properly the could have questionably, Criner, Roy Wayne without the consent all of the essential elements of Deanna; of the same and in the course aggravated sexual assault. offense of caused seri- episode criminal the defendant direct and cir- The record contains both by injury Ogg strik- bodily ous cumstantial, relevant, probative evidence. a blunt instru- ing Ogg in the head with phase of As to the circumstantial evidence ment, and is unknown the nature which record, it that each is well established grand jury. The unknown to the necessarily point di- fact does not have to es- us sustains all of these record before rectly independently guilt of the and elements. allegations sential proper criteria is the cu- defendant. which are Again, statements confes- effect or effects of all of the mulative appellant himself, cou- sions incriminating, surrounding facts. It is Hoоker, testimony ofRingo, pled with the entirety effect of the cumulative examiner, Pitts, and the ser- the medical evidence, the direct evi- circumstantial or di- physical ologist buttressed dence, physical and the facts exhibits by the in the case rect evidence reinforced sufficiency of the evi- establishes clearly sus- in the case exhibits admitted support the verdict of the dence to Criner was jury. tain the verdict of Indeed, appellant. the conviction interrogation he when custodial carefully entire record before us must be Ringo, Hooker and confessions to made his way examined because of the were not officers Pitts. These friends attacks his conviction. blurted confessions were the law. Criner’s course, And, it is well settled that Appel- voluntary manner. purely out in a reviewing sufficiency standard ‍‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​​​​‌‌‌‌‌‌​​‌‍for Deanna, he said he told raped he lant said appeal is the same for a the evidence on her. Deanna was that he would kill her case it is for a circum direct evidence picture and other identified her recent However, here, I case. stantial evidence marks strong puncture She had evidence. direct and circum opine, that there both medicаl examiner said her neck. The on evidence, as demonstrative as well stantial likely was a instrument the screwdriver State, 663 See Houston v. evidence. dead; Ogg injuries. inflict such (Tex.Crim.App.1984); Carlsen S.W.2d on her head. had bruises State, (Tex.Crim.App. 654 S.W.2d he to Jeff Pitts that stated 1983) Rehearing); (Opinion on Freeman Ogg up a picked blond-haired State, (Tex.Crim.App.1983) 654 S.W.2d —Deanna (observe photo- her a blond-haired Rehearing); Denby v. was (Opinion on her only days three before graph (Tex.Crim.App.1983) taken 654 S.W.2d death) he threatened her with made certain sexual advances towards —and screwdriver, types against different of sex temper Deanna that flared in and engaged that Criner left fought very angry that she became very logging on road trail or bodily which resulted in serious back thereby after the vari- near sexual acts of eventually injuries that caused death. finally natures were Clear- ous concluded. all, reflects clearly After the record record, fact ly, under this a rational trier of Criner, appellant, admitted and confess- beyond could have found reasonable doubt Ringo Terry ed before and Michael (as jury) appellant, did the trial very had sex his mind from evidence, exhibits, from both the direct girl up. In young first when he evidenсe, inflicted and the circumstantial conversation at a time another different Deanna, injury bodily serious Pitts, appellant stated and with Jeff year-old finder facts girl. dead And a (Criner) raped the dead confessed that he reasonably could conclude that this serious victim—and used word—and during bodily injury occurred the same if Ogg kill resisted. he would and could episode sexually criminal which Criner shows Criner’s dead victim record Ogg against her and without assaulted will flared, temper If was Deanna. Deanna’s her consent. a The she could have become “wildcat”. brief, jury properly In and did the could jury properly have considered could up put together and come with two two jury weighed all that evidence. The should that The record reflects the correct four. term have done so. The “wildcat” of types the various sexual intercourse mother, by Ogg, the to de- used Patricia inju- bodily sexual activities and the serious daughter Deanna. The scribe her own time. certainly closely related in ries were strong is cloaked with mother’s sworn oath itself, autopsy report which was admit- The usually know probative force. Mothers any objection, without ted into evidence Hence, daughters. the well their evidencе cogent, compelling, probative could, prerogative, find the well within its weigh This jurors for the to and consider. other sexual sexual intercourse and the report supported element that autopsy the all from the activities were non-consensual a trauma to Deanna suffered blunt appellant also standpoint of Deanna. a autopsy report reflects that head. The actually over Ringo that he reached told the result of a fracture cause of death was by hair and grabbed the victim which, turn, a was due to to skull Query: pulled her down in seat. head, well multi- trauma to the blunt repul- This was Where is consent? jurors to neck. The ple stab wounds addition, Ringo. Rin- sive statement reasonably deter- have found and could while nar- appellant, testified that the go as, indeed, they the same did—that mined— (appel- rating horrific events what were death causes Deanna’s done, lant) kill had said “I’m bodily Fur- injury her. causes of serious words, course, were direct- These you.” thermore, trier my opinion, any rational time the at the same ed to Deanna and beyond reason- could have found fact with his appellant jabbing motion victim, is doubt that the unnamed able hand. appellant’s unnamed say, victim tо three differ- and confessions statements his rea or state appellant’s mens was, fact, Ogg. lay-people, ent clearly having immediate bent on mind was by the finding fact This is buttressed accompanied by and cou- sexual intercourse description in the of the bodily injury. inflicting serious pled with the de- confessions matches admissions and Terry gave Again, graduation victim and scription appellant grabbing screwdriver—a in this body dead photograph. The part some long rather screwdriver—from case was Deanna which time of the truck at of the dashboard appellant told the victim rightly have determined could noises, away any make get tried concluded when appellate the standard of the law as well as Again, her. where is the kill he would (2) Two Appellant’s Point of Error review. consent? disposes fatally flawed. Yet the Court Pitts testified Jeff appeal solely on this case and this (appellant) took the vic- him that told defective, inadequate ground. lethally the road and threatened tim down under this horrendous majority The sexual inter- Since a screwdriver. acquittal appellant, record orders an bodily injuries serious course respectfully lodge this dissent. fact was I must definitely related in time. This scientifically supported by giv- the evidence circum requirement A former Parungao. This medical en Dr. V. same every rea exclude other stantial evidence bodily that the serious examiner testified except of the de hypothesis sonable striking caused injuries to Deanna were longer the ulti guilt is now no fendant's in the head with a blunt instru- her on or mate, review. paramount, standard above, Deanna also re- ment. As stated Rather, 443 U.S. Virginia, the Jackson injuries to her piercing a number of ceived (1979), 61 L.Ed.2d 560 99 S.Ct. Again, the neck and in her neck area. trier that of rational test or criteria is this could have been medical examiner said fact” “any rational trier of of fact. The long care- caused screwdriver. When Neverthe appraisal is now the standard. reviewing complete fully reading and less, using “any rational trier of if in autopsy report came into evidence which rea supports analysis, fact” objection, the fact-finders could without record, (being hypothesis sonable the same properly have determined course) guilt of the defen other than identical cause of Deanna’s death were the dant, permit is not appellate then the court bodily injuries the serious sus- causes of is a guilt a verdict of ted to rule that such by tained her. trier of finding by a rational truly rational State, 450

Furthermore, v. 654 S.W.2d clearly the record demon- fact. Freeman so, this stan (Tex.Crim.App.1983). Even appellant that the area in strates which if the conclusion picked up girl matches the dard or test is satisfied admits he by a com guilt is warranted Ogg’s body and and verdict of area in which was found force of all appellant’s statements and confes- bined and cumulative that the I cannot hold incriminating circumstances. raped girl definitely that he are sions incriminating circum under all of the findings of the medi- harmonious with hy a reasonable stances that there exists cal examiner that sexual intercourse has been the indicted offense completed Ogg; pothesis the time been other than person some third admits that he committed frame which hypothesis em up sexually young assaulted the the accused Criner. this offense majority girl the time frame in braced is consistent with by some other appel- may have committed missing; that the been which maintain, harmony individual, is out of I lant’s admission that he threatened the State, 442 See v. near an with the evidence. Jones with a screwdriver that was at or (Tex.Crim.App.1969), de sup- cert. air-cоnditioning truck is S.W.2d 698 vent of his 967, 958, nied, 25 L.Ed.2d evidence; lastly, 397 90 S.Ct. physical U.S. ported (1970). Simply put, the unaccounted- appel- description 143 that a third to the effect description hypothesis for matches the lant’s statement must be a person the offense victim, physical committed Ogg, and matches all of hypothesis An- consistent hair. reasonable such as her blond characteristics and facts surrounding circumstances point of er- second alyzing I maintain verdict, sentence, proved in the record. ror, judg- that were hypothesis exists reasonable The ma- that no such be affirmed. ment below should (to saving appellant), solely before us. Such acquits jority opinion reasonable, hypothesis unaccounted point of error. of his second on the basis record; by the but (2) is, itself, clearly should be demonstrated Error Two Point of (of rule concept and it not. The grossly misstates The same erroneous. 154-158 be required) proof to constitute

which is

yond must tested a reasonable doubt be on the individual analyzed each case I

facts each case. would hold clearly proves that offense

record that there was the

actually committed and

necessary degree proof person' who the accused was

show that O’Mary v.

committed the indicted offense. 294, 139

State, 139 Tex.Crim. 800 S.W.2d State, Slaughter v.

(1940); 132 Tex.Crim. v. Taylor

179, (1937); 103 S.W.2d 385 330,

State, 611 221 S.W. 87 Tex.Crim.

(1919). certain fact situa

At times and under

tions, seemingly insignificant circum surrounding totality

stances sustaining satisfactory, provide very events the accused. guilt evidence of (Tex.Crim.App.1983), S.W.2d 801 Mitchell 650 1073, t. denied 464 U.S. cer 104 reh. denied 985, 79 L.Ed.2d S.Ct. L.Ed.2d 79 S.Ct. U.S. State, Mumphrey (1984); 1989) pet. (Tex.App. S.W.2d — Beaumont (Tex.Crim.App.1989). S.W.2d 259 ref'd evi- perceive

I record and the this all of contained therein meets

dence verdict

requisite sustaining the criteria for guilt this would vote accused. affirm declines to

affirm. Since Court respectfully ‍‌​‌‌​​‌‌‌​‌‌​‌‌​‌​​‌‌‌​​​​‌‌‌‌​​​​​​​​​‌‌‌‌‌‌​​‌‍file this dissent. acquit, I

but

Case Details

Case Name: Criner v. State

Court Name: Court of Appeals of Texas

Date Published: Jan 8, 1992

Citation: 816 S.W.2d 137

Docket Number: 09-90-096 CR

Court Abbreviation: Tex. App.