*1 Larry Ray SWEARINGEN, Appellant, STATE Texas. 73,851.
No. Texas, Appeals
Court of Criminal
En Banc.
March 2003. *3 twenty-four raises
assault. points of error. will affirm. We Relating I. Points of Error to Eviden- tiary Sufficiency error, points first four Swearin- gen asserts that the evidence adduced at legally factually trial was insufficient doubt, prove, beyond a reasonable capital aggravating elements offense *4 by the that he alternatively alleged intentionally Trotter’s death while caused committing attempting in or the course of kidnapping aggravated to commit or sexu- not contend Swearingen al assault. does prove, to that the was insufficient doubt, that he inten- beyond a reasonable tionally murdered Trotter. evidence, in the most light
The viewed State, shows that Swearin- favorable to the Trotter on gen acquainted became with 6,1998, talked with her Sunday, December number, and length, got phone her Galeston, Taylor, Stephen Christopher again talk with her plans made to see or Appellant. for day. day, next she failed to the next Conroe, Swearingen had DA, up for lunch after show Brumberger, Marc Asst. plans Paul, Austin, bragged to his coworkers about Atty., for Matthew State’s His coworkers to have lunch with Trotter. State. up even after being teased him about stood called he had told them that he Trotter taking had been and she said that she OPINION appeared angry to be Swearingen test. day. the remainder HOLCOMB, J., opinion delivered the KELLER, P.J., Court, in which and using his truck evening, Later that while MEYERS, KEASLER, and HERVEY furniture, help transport some Swearin- COCHRAN, JJ., joined. Bryan and Wil- commented to Foster gen going meet Larry Swearingen appeals his con- liam Brown he was Ray lunch the Melissa for young lady which he was named capital viction of murder for right, he everything went day, Ann. next and to death. Tex. Penal Code sentenced lunch.” Melissa for 19.03(a)(2); going Article “to have § Tex.Code Crim. Pro. 2(h). clothing 37.071, 2(b), 2(e), various items 2(g), §§ Swearin- Brown noticed truck. Swearingen’s murdering Melissa the backseat gen was convicted for Trotter from Foster’s Swearingen called strangulation by ligature Trotter lunch meeting for to house and talked about committing attempting course study her for an exam. helping sexual kidnapping aggravated commit Tuesday, approxi- in the Swearingen having On December with been woods college library mately days, supporting met Trotter around December 8 as p.m., purchased 1:80 after Trotter had the date of death. The location where some tater-tots from the school cafeteria. body heavily Trotter’s was found was sitting by computers talking secluded, After wooded, police and remote. The amicably with for Swearingen some previously the area three had searched time, library amount of Trotter left the finding body. times without One had Swearingen p.m. around Trotter’s twenty body feet of before be within college parking vehicle remained lot. way seeing Swearingen it. knew his area; around this he had driven a date p.m., At 2:05 returned a vicinity around the a few months earlier page he received and said he would have to pickup. his red call back later because he was at lunch awith Mend. body was on its back in a pile Swearingen returned to his trailer some- bushes, right her arm was above her p.m. time before 3:30 and left between 2:00 top slightly head and to the left. Her p.m., p.m. again and 3:30 then returned arms, pulled up expos- bra were under her *5 the trailer p.m., sometime before 5:30 ing her breasts and back. were There asked his landlord questions, some then creases on her back from her neck to her again p.m. left p.m., between 4:30 and 5:30 by lay- waist that could have been caused wife, pick up Terry to Swearingen, period ing on the debris the bushes for a from his neighbor, mother’s house. His jeans of time after she had died. Her seeing Swearingen’s go, truck come and closed, fly on were and the was but the not through was able to see the tinted right pocket rear torn ex- was downwards got windows see who and out of the part posing of her buttocks. She was truck. wearing red underwear. There were no Swearingen
When and his wife returned exposed scratches found on her skin as one home, package a of Light ciga- Marlboro expect would find she had been rettes and a red lighter top were on of the However, dragged to the location. there television. The evidence showed that was no soil on Trotter’s shoes. had She Trotter Lights smoked Marlboro and that on; only lying one shoe other shoe was neither or his wife smoked. nearby. That evening, Swearingen Phyllis called asphyxia, oxy- Trotter from lack of died Morrison, girlMend, a former and told her gen, by ligature strangulation. nylon The police that he was in trouble and the might ligature pair a cut from a was section be after him. pantyhose; matching complementary 11, Swearingen On December was ar- portion pantyhose of the was found pursuant rested outstanding several Swearingen’s appeared trailer. There also
warrants,
handcuffed,
being
and while
said
sharp-forced injury
to be a
on Trotter’s
that his
a
wrist
ribs were sore from
neck
would have been inflicted before
fight
bar
he had been in the week before.
died,
Trotter
while her blood continued
subsequent
circulate.
was
Although there
body
Trotter’s
was found in the Sam
activity
animal
and tooth marks on the
January
Forest on
Houston National
area,
tied,
at that
a cut with a
piece
hosiery
organs
a neck
with a
still
as
knife,
sharp object,
neck. The
like a
could not be
ligature, around her
state
decomposition
ruled out.
body’s
was consistent
wounds,
girl
it
written
a
lack of defensive
such as
ter stated was
named
identify
mur-
fingernails,
difficulty
broken
and the
Robin who could
a
piece
nylon
an elastic
around
as someone other than
tying
derer
victim,
struggling
suggested that Trotter
and who knew the details
murder.
may
liga-
have been unconscious when
of the letter is as follows:
The translation
applied. Although the state of
ture was
Larry
it difficult to deter-
decomposition made
I
that I need to tell
have information
mine, the left side of Trotter’s face was
I
you about Melissa and Wanda.
stage
advanced
much darker and at a more
Melissa, and with
with the murderer of
decomposition, which could be consis-
from work.
I
the one that took Wanda
having
tent with
a bruise on the
sustained
Wanda,
am not sure what he did with
showed
left side of her face. Evidence
happened
everything
but I saw
a
are
to blood and
that animals
drawn
to her in the
talking
Melissa. He was
would collect blood close to the
bruise
They
to school to-
parking lot.
went
deep
skin’s surface. There was also
is what he told me. “We drove
gether
or a
tongue,
bruise on Trotter’s
like bite
awhile, and then we went and had
for
cut,
un-
being
consistent both with
struck
began
I
to talk about sex
breakfast.
chin,
push the lower
der the
which would
go
when she said she had to
home.” He
biting
jaw up
tongue,
onto the
eye,
and she fell to the
hit her
the left
being strangled
tongue
down on the
while
took her to the
floor of her car. He
There was also
suffering
seizure.
her with his
began
to choke
wood
wall,
vaginal
discoloration on Trotter’s
first,
jerked (jalar
he
hands at
then
that could have been caused
bruise
He cut her
slang) her to the bushes.
*6
disap-
day
the
of her
sexual intercourse on
that she was dead.
throat to make sure
pearance.
jerked
off when he
Her shoe came
on Trotter simi-
There were fibers found
jabear
Her
(slang) her into the bushes.
jacket,
Swearingen’s
lar to
from
oth-
fibers
(cannot
in Span-
no
make
such word
out/
in
and head-liner
ers similar to the seat
ish)
him,
I am in love with
was torn.
truck, and others similar to
Swearingen’s
man
jail.
I
him in
in
and don’t want
carpet
Swearingen’s
master bed-
the
jail,
either.
jail doesn’t
to be
deserve
were also fibers found
room. There
know, I am tell-
you
make sure that
To
truck that were similar to
Swearingen’s
wearing red
you the truth. She was
ing
jacket. There were
fibers from Trotter’s
murdered her. He
panties when R.D.
appeared
truck that
Swearingen’s
hairs in
first, but he
her with his hands
choked
from Trot-
forcibly
have been
removed
to
truck from his
piece
rope
the
used A
ter’s head.
truck;
rope that
piece
a
of black
he had
revealed that
An internal examination
it,
anchor
or
he used
his boat
only
contained not
what
Trotter’s stomach
dragged
he
he said. When
something,
potato,
a form of
but also
appeared
car,
her in the shrub
put
the
he
her from
a
appeared to be chicken and
small
what
I should turn
I know that
on her back.
vegetable material.
greenish
amount of
in,
kill
him
he told me that he would
but
me, too,
told
trial,
I
him. He has
and believe
jail awaiting
inWhile
to 3 other women
about this murder
mother that
the evi-
sent a letter to his
smokes,
written,
you that he
past,
will tell
Swearingen had
dence showed
college
at the
he smoked with her
an
dictio-
help
English-Spanish
with the
His hair is
and drove a blue truck.
The let-
2:30
nary
copy.
and had his cellmate
kidnap-
person
blonde and brown and lives here. His
A
commits the offense of
tell,
Ronnie,
intentionally
restrict-
ping by
knowingly
name is
but that
all I can
or
is
movements,
information,
by either mov-
you
ing person’s
if
want
a
say
more
it on
write,
ing
place
from one
to another
paper
person
and I will
I
continue to
but
consent,
person,
confining
or
without
want to come in.
coercion,
i.e.,
force, intimidation or
so
by
Robin
per-
substantially
as to
interfere
turn
question
We
first to the
liberty,
by doing
son’s
so with
sufficiency.
legal
The Fourteenth Amend
by
prevent
person’s
intent to
liberation
guarantee
process
ment’s
of due
of law
place
him in a
secreting
holding
either
or
prohibits
being
a criminal defendant from
using
likely
where he is not
to be found or
convicted of an offense and
denied
force,
threatening
deadly
to use
force
liberty except upon proof
per
sufficient to
person acting
intended or known
fact
guilt beyond
suade
rational
finder of
cause, or in the manner of its use or
assessing
legal
reasonable doubt.
capable
causing
intended
is
death or
use
sufficiency
support
evidence to
bodily injury.
serious
Tex. Penal Code
conviction, we consider all
record
evi
20.03(a).
20.01(1)(A),(2)(A)
(B),
§§
&
light
dence in the
most favorable to the
whether,
jury’s verdict and
of kidnapping
determine
The offense
is com
based on that
in
plete
accomplished
evidence and reasonable
when the restraint
therefrom,
ferences
jury
rational
could and there
is evidence
the defendant
guilty
have found the accused
of all of the
intended to restrain the victim
either
elements of the
beyond
deadly
offense
a reason
or the use or threat to
secretion
use
able
Virginia,
doubt. Jackson v.
443 U.S.
force. Mason v.
Swearingen contends and another description of another man support stantial evidence is insufficient to 1) other infor- involved. It contained necessary inferences: the exis- vehicle several undisputed facts mation Swearingen’s of intent to consistent timing tence and 2) death, the location The such the cause of kidnap sexually assault Trotter. as 3) Trotter’s under- body, the and the color of attempted restraint. accomplished or some information as- wear. It also contained accomplished attempted The sexual fiction, 4) such have truth or lack of consent to ei- that could been sault. Trotter’s
97 sex, in- or that he had to started to talk about as the statement she said she sex, her con- go began home when he to talk about tended to restrain Trotter without her, place that it hit her to a by moving that he hit was after he sent and did so her woods, that he took her to the and that it and likely where she was not to be found that he her. confine began by using was there to choke her what continuing to jury’s regarding determinations the deadly force. turned out to be veracity supported of such information was jury Swearingen If the concluded that jury’s the regarding determinations rejecting for his sexual ad- hit Trotter evidence, other such as the food found in forest, the driving vances before her to the stomach, decompo- Trotter’s the advanced Swearingen about which com- inferences face, left sition of the side of her place. plains fall into The scenario Swearingen’s earlier regarding comments killed Melissa Trotter in the Swearingen his intent to have sex with Trotter. Thus her in order to sexu- kidnapping course of supported, provided the a letter time line rejected ally assault her after she his sexu- place physical with which to the evidence evidence, supported al the advances is explanation into context and an for how thus, legally the is sufficient to evidence episode began. the criminal support the verdict. Points of error one Although Swearingen’s letter did not and three are overruled. specifically any detail of his in fur- acts committing aggravated therance of sexual question We turn next to the assault, support it did hypothesis the sufficiency. factual Our state constitution rejection of his sexual advances a requires appellate an court to reverse began cycle of violence that led to her if judgment proof guilt of conviction the inference, It sup- death. is a rational obviously is so weak as to undermine confi ported evidence, by forensic such as Trot- determination, jury’s dence in the or the exposed ter’s torso and vagina, bruised if proof guilt, although adequate taken attempted carry out alone, greatly outweighed by the con his intent after he had initial rendered the trary proof. 23 Johnson S.W.3d performed blow and before he the final act (Tex.Crim.App.2000). Although au stabbing her in the throat “to make sure disagree jury’s with the deter thorized dead,” that she was as he wrote in his probative mination even evidence exists letter. verdict, supports reviewing which piece give While each of evidence lacked court must due deference to the fact isolation, strength consistency concerning of the finder’s determinations weight credibility evidence and the reasonable inferences therefrom, provide girders drawn fact to will reverse the finder’s determination strengthen support the evidence and a ra- only to arrest occurrence of manifest jury’s tional factual finding beyond injustice. assessing elements Id. suf say, looking ficiency support reasonable doubt. We cannot of the evidence to a con evidence, totality the viction we consider all the evidence obviously light. evidence was so weak that a neutral Ladd v. S.W.3d jury necessarily (Tex.Crim.App.1999). rational would have enter- If we find the evi *9 insufficient, factually tained a reasonable doubt that dence to be we must trial, intended to sexual that a second have intercourse with remand for new so attempted jury Trotter and that he to do so will have a chance to evaluate the despite go her desire “to home” when he evidence.
98 only significant independent corroboration between the forensic evi episode contrary to the the dence and the rendition of the evidence verdict is sufficiently Swearingen Swearingen’s strong that letter is testimony explaining of proof that we that the college, say guilt he cannot of left Trotter at the while she man, obviously is so weak as to undermine our talking was to another and went to jury’s confidence the determination or see and his grandmother, grandmoth his disprove tending that the evidence testimony Swearingen picked er’s that her dispute guilt preponderates greatly against up post her to the and took office around Johnson, jury’s the finding guilt. See 8,1998 p.m. 2:30 on December and left her 11; 23 see also S.W.3d Goodman v. p.m. around 2:50 The State on cross-exam State, (Tex.Crim. 66 285-86 S.W.3d ination, question grand called into his App.2001). The evidence therefore fac memory of the date and time and mother’s tually support the sufficient to verdict. credibility also the of her as she statement had not of her informed authorities Points error two and four are over- Swearingen’s knowledge of whereabouts ruled. jail languished
while he trial. awaiting Jury Challenges II. for The jury reasonably could have disbelieved Selection — Cause testimony. both witnesses’ We must defer jury’s judgment the witnesses’ points through of error five credibility. seven, Swearingen contends the trial court challenges erred in for denying cause tending disprove
Other evidence venirepersons. against certain Swearin- dispute guilt testimony consists of that the gen venirepersons Jeffrey Hol challenged also forensic evidence would be consistent der, Lightfoot Sipe, Wayne on Doreen example, with other theories. For there basis prejudice, arguing of bias or testimony was shirt could against applicable each had the law a bias pulled up process have in the been Swearingen to the upon case which was dragging body her to the bushes. Howev- to rely, namely: Swearingen’s pre entitled er, that no testimony there was also sumption Swearingen of innocence. exer were found on the body scratches as would against cised a each of peremptory strike expected exposed pulled skin were venirepersons. requested these He ground. on the was across debris There peremptory received two additional creases testimony on her back strikes, a third but was denied additional produced by laying could have been on her Taylor, a veni- peremptory strike. Connie period time clothing for a after she had reperson objected, to whom died, top up her indicating pulled was jury. was To demonstrate seated on post-mortem, but there was other testimo- harm, show Swearingen must ny her have that the creases on back could all challenges against cause three of for laying been her bare back on produced whom he com venirepersons about from the time she There debris died. erroneously denied. Pen plains were See that the discol- testimony vaginal also (Tex. v. ny Crim. an in- oration could have been caused App.1995). fection her medical indicated records she had suffered. review the trial court’s ac We Swearingen’s for light, denying challenges in a tion given
Viewed neutral even Curry for discretion. piece weakness of each individual cause abuse of relative (Tex.Crim.App. tending prove guilt, S.W.2d
99 1995). the opinion and render a verdict based on challenges For based on venire- court.”) law, in alleged against presented the “we member’s bias must determine whether the venire- Sipe’s daughter Doreen had been prevent member’s would or sub beliefs had sexually molested and her husband stantially impair him from the following peniten and was sent to the been abusive law as set out the trial court’s instruc peace to a officer. She tiary for assault required by juror’s tions and as the oath.” repeatedly testified that she was able State, 602, Lagrone v. 942 616 S.W.2d separate experience her own from the case (Tex.Crim.App.1997). review the trial We any precon at had not formed hand. She in light venireper- court’s decision of the regarding Swearingen’s ceived notions son’s voir dire as whole. When And, guilt despite or innocence. the simi objection not clearly record does contain a larity charges of the and the fact that by venireperson, able declaration or daughter, victim would was someone’s she vacillating the record or demonstrates opinions strictly base her on the evidence equivocal venireperson, great we accord presented Sipe’s testimony case. judge deference to the trial who had any prejudice does not reflect bias or opportunity better to see and hear the against presumption of innocence. State, 846, person. Garcia v. 887 S.W.2d fact, when could give asked she Swearin- State, (Tex.Crim.App.1994); 854 Rachal v. gen presumption the benefit of the of inno (Tex.Crim.App.1996); 917 S.W.2d 814 charges, cence on the she answered that Heiselbetz v. 906 511 S.W.2d she could. The trial court did not err (Tex. App.1995). Crim. denying Swearingen’s challenge for cause Garcia, Sipe. at regarding See Jeffery Hollier testified that he 854. suspected the defendant for was “here reason,” slight some and that he had “a Wayne Lightfoot used the term against bias the defendant” based on infor summarizing “abducted” when the infor mation he’d read the media and the fact mation he had read about the case daughters, that he had but that he had not newspaper. asked whether he had When opinion concluded, information, formed the that Swearingen was from that that she guilty abducted, and he agreed explained, might understood and he “I had been presumption loosely, of innocence. The court have used this term a little bit was, any asked whether Holder could set aside I meant I think in because what have, preconceptions he might and Hollier reference to where she was last seen there part, responded, Montgomery County College “that that certain bias ly not prevent being open- point, prob will me from someone saw her at that and I seeing ably minded and whatever the evidence shouldn’t have used the term ‘abduct forming any is and what I think the correct if he is ed’ because—.” When asked had analysis juror prejudice against of it.” Because the could bias or the defendant he lay aside his bias and render verdict answered that he did not. The record court, presented in Lightfoot based on the evidence does not reflect that had a bias by denying prejudice against the trial court did not err the defendant him Swearingen’s challenge regard deprive presumption for cause would Bell v. innocence. The trial court did not err ing Hollier. See S.W.2d (Tex.Crim.App.1986)(venireperson Swearingen’s challenge for cause denying Garcia, subject challenge regarding Lightfoot. not to a “if See for cause juror lay impression can aside his or S.W.2d at 854. *11 present appel- no evidence that could points of error five State Swearingen’s involving a crime Trot- lant had committed are overruled. through seven Thus, appellant, according to ter. probable Suppress to III. Motion —no were magistrate to the facts submitted cause objects justify to insufficient probably thir- located on the points eight through In of error searches were teen, trial court at the time the war- Swearingen specified premises asserts the suppress support motion to issued. To the issu- denying erred his rants were warrant, pursuant to the search of a an affidavit must set evidence seized ance 18, 15 and to establish that the on December forth sufficient facts warrants issued affidavits located at supporting object probably of the search is because facts estab- at the time the warrant specified place failed to set forth substantial Massey cause for the warrants. 933 S.W.2d lishing probable issued. See The chal- rulings (Tex.Crim.App.1996). violated He contends Ninth, Fourth, Fifth, and Fourteenth were for Swearin- lenged search warrants home, truck, par- and his Amendments to the United States Consti- his trailer gen’s tution, I, might Texas be sufficient section 9 of the Facts that Article ents’ home. places Constitution, of these support Code of Criminal of one and Texas to search support to search may Article 38.23. be insufficient Procedure distinguish Swearingen failed another. Swearingen had argues that The State to the various affidavits relate how the his challenge the search of standing no Therefore, he has places searched. to be truck, evidence introduced as State points these and adequately failed to brief stolen, Swearingen the truck had been error, is waived. any, grounds if on these stolen, that it was personal knowledge had 542, 558 Lawton v. See evi- provide any not Swearingen did (Tex.Crim.App.1995). expec- why legitimate he had a dence as to in the vehicle. The privacy tation of stolen thirteen through eight of error Points failed to Swearingen argues also State are overruled. that the affidavit any complaint
preserve
cause,
probable
Suppress
because
failed to establish
IV. Motion to
—confidential
complained only of
suppress
his motions
communication
on untruth-
probable
a lack of
cause based
fourteen
points
of error
in the affidavits.
contained
ful information
complains
Swearingen
through twenty,
inaccuracy,
The State contends
his
denying
erred
trial court
that the
mistake,
negligence
being the result
seized from
suppress
motion to
the information be
require
not
need
the evidence
because
attorney’s office
his
from the affidavit.
eliminated
between
communication
a confidential
the evi
asserts
client. He
pre
attorney and
Swearingen
had
Even
fails,
in violation
review,
was seized
dence
for
he
served this error
Sixth,
Amend
Fourth,
Fourteenth
brief,
the facts as
apply the law to
Constitution,
States
ments to
United
appellate rules. See
under the
required
Constitu
I,
of the Texas
section
com Article
Swearingen’s
P.
Tex.R.App.
38.1.
Procedure
tion,
Criminal
Code of
unrea
Texas
prohibiting
law
plaint discusses the
18.02(10)
38.23, and Texas
Articles
and the law
and seizures
searches
sonable
seized
The item
503.
con Rule of Evidence
hearings and
suppression
governing
had mailed to
15, 1998,
letter
that,
the was the
December
as of
cludes
stated,
face,
his mother that
on
it geant
its
Leo Mock went to the trailer on
*12
by
1999,
was written
6,
someone named Robin.
January
anyone
to see if
still lived
Swearingen argues
improper-
the warrant
there. He found that the landlord and his
ly sought to obtain a communication made
just
wife had
cleaned out the trailer
appellant
attorney
between
and his
which
party.
order to rent
it to another
privileged
under the rules of evidence
landlord showed Mock where he had
personal
and
the evidence
awas
writ-
thrown out the trash and Mock recovered
ing of
subject
the accused not
to search
pair
pantyhose
leg missing.
of
with one
18.02(10).
and seizure under Article
property
Abandonment
oc
First, Swearingen steadfastly asserted
(1)
curs if:
the defendant
intended to
he did not author
Additionally,
the letter.
(2)
property,
abandon the
and
his decision
the letter
was sent
to and handled
property
to abandon the
was not due to
parties.
several third
There was no evi-
police misconduct.
v.
McDuff
dence
the record that appellant intended
607, 616 (Tex.Crim.App.1997);
S.W.2d
see
and,
the communication
privileged,
to be
466,
Brimage
also
purpose
because the
of the letter was to
(Tex.Crim.App.1994).
police
When the
perpetrate
fraud,
the letter would have
possession
property
take
that has been
excepted
been
attorney-client
from the
independent
abandoned
police
miscon
privilege.
See
Tex.R.
Evid.
duct, no seizure occurs under the Fourth
508(a)(5),(b)(1). Therefore, the trial court
McDuff,
Amendment.
103
son,
charging
23
at 7.
authorized to
verdict on indictment
alter
guilty
S.W.3d
We are
same of
jury’s
committing
with the
determination
native theories
disagree
fense,
probative
supports
which
stands if evidence
even
evidence exists
verdict
Johnson,
denied,
supports
any
charged),
the verdict.
cert.
528
S.W.3d
of theories
Santellan,
7;
at 164. A
120 S.Ct.
jury perceives particular piece of evi- setting appellant’s In addition to out ac- dence, bearing but it has no on whether disap- after Trotter’s tivities before and that evidence exists in the record. presented also testimo- pearance, the state in the ap appellant,
A factual
must
while incarcerated
sufficiency
ny
review
trial,
propriately
Montgomery County jail awaiting
deferential so as to avoid the
mate,
Coleman, a
appellate
substituting
judg
gave
court’s
its own
his cell
Ronnie
finder,
appeared
Span-
ment for that of the fact
letter that
to be written in
Clewis v.
(Tex.Crim.App.
copy
ish and asked him to
it onto another
*14
1996),
Coleman,
reviewing
piece
paper. Appellant
but the
court
remain
told
must
cognizant
always
Spanish,
that the state
carries the
know
that the letter
who did not
proof
grandmother,
burden of
to establish each and ev was to his
who was more
ery
Spanish
English. Appel-
element of a criminal offense at trial.
literate in
than
Johnson at 11. Consistent with the Four
lant claimed that he needed Coleman to
teenth
guarantee
pro
recopy
grandmother
Amendment’s
of due
the letter because his
law,
appellant’s
cess of
a criminal
cannot
reading
defendant
be had trouble
handwrit-
except upon proof
convicted of an
ing.
offense
sufficient
guilt beyond
to show
a reason
Appellant
copied
thereafter
sent
Florida,
31,
able doubt. Tibbs v.
457 U.S.
mother,
version of the letter to his
claim-
2211,
(1982).
102 S.Ct.
impermissible appel to shift the burden to stepfather lant’s to have it translated. produce lant to showing evidence that he Appellant’s stepfather copy took is, did not commit an offense. There and friend, letter to Detective Joe Alvarado be, requirement can no appellant pro that Department, had of the Willis Police who supporting duce evidence his innocence. professionally the letter translated. The translator, Perez,
The indictment in this
alleged
case
Genoveva
had trouble
appellant intentionally caused the death of
translating
poor
the letter because of its
in
improper
Melissa Trotter while
the course of
use
grammatical structure and
“committing or attempting
ultimately
to commit the
of words. She
translated the
kidnapping
offense of
in
[aggravated]
ways
offering
sex
letter
two
her inter-
—one
ual assault.”
charge
pretation
Because
court’s
of the letter and the other show-
jury
ing
authorized the
to convict on alterna
a literal
translation of the words
theories,
guilt
tive
the verdict of
should
the letter.
testified that the
Perez
letter
upheld if
the evidence was sufficient on was not written
someone who knew
Spanish.
either
the theories. Rabbani v.
On cross-examination Perez tes-
555,
(Tex.Crim.App.1992),
poor quality
847 S.W.2d
558-59
tified that due to the
denied,
impossi-
rt.
it
Spanish
509 U.S.
113 S.Ct.
used
the letter was
ce
(1993);
exactly
According the letter Ronnie, who was with portedly written a woman here. His name is but that is he, appellant, boyfriend tell, her when and not you all I can want more informa- body in killed Trotter and left her tion, paper it say on and I will continue (as interpreted by The forest. substance write, I but want to come in. translator) is as follows: Robin Larry, Although appellant that he re- claimed I I to tell have information that need party, this letter a third ceived from I you about was Melissa Wanda. appellant presented state evidence that Melissa, with the and with murderer of possession Span- of a had been seen I the one that from work. took Wanda ish/Engfish and it offered fist dictionary, Wanda, am not sure what he did with A translated into evidence. words happened I everything but saw jury handwriting expert told the talking Melissa. He to her was Span- their handwritten fist of words with parking They lot. to school to- went appellant’s known ish translations matched what drove gether is he told me. ‘We Thus, presented handwriting. the state for awhile then we went had inference supporting a reasonable I sex began breakfast. to talk about author of the actual He go when she said she had to home.” letter. to the eye, hit her the left and she fell to the
floor of her car. He took her admittedly letter counterfeit *15 began and her with his woods to choke contained some copied Ronnie Coleman first, jerked her to the hands then he the crime were unknown facts about which He cut to make sure bushes. her throat foren- public the and with the to consistent was came off that she dead. Her shoe (e.g. and panties), the red sic jerked he into the bushes. when her obviously not true other facts which were translated; no such jabear [not Her breakfast, car, rope). From (e.g. her black Spanish] flank torn. word was information, mixture of some accurate this him, I I am love and don’t with inconsistencies, obvious false- factual and jail. jail him in doesn’t want The man hoods, prosecutor hypothesized the make jail, deserve to be in either. To made author neces- the statements the know, you telling you I am the sure appellant kid- sarily support finding a panties wearing truth. She red was napped Trotter. R.C. her. He choked
when murdered is prosecutor’s hypothesis the While first, he used a her with hands but weak, apparent false- given readily the truck; truck, rope, from his piece of creation and surrounding hoods both piece rope he had a of that he used black letter, I hold spurious would content of the something, he in his boat to anchor it or reasonably may that the inferences which he her from the dragged said. When support to legally drawn are sufficient car, her put he her in the shrubs on of in the course guilty verdict of murder in, him I know I turn back. should I overrule kidnapping Trotter. would me, kill he told me that he would but error one. point too, I him. He has told believe legally sufficient Because the evidence this to three other women about murder theory of support he the verdict on past. you I will tell point kidnapping, at the I need not address and he with her smokes smoked three, suffi- legal challenges at 2:30 drove a blue truck. error which college through the underbrush of had been forced ciency theory based on the alternate assault. at 558-59. body dragged sexual had into the her been Rabbani was there soil on her woods. Neither I turn now to the issue of factual suffi- shoes, body indicating that Trotter’s was ciency.3 allegation kidnapping, On many There are carried into the woods. appellant shows that had a the evidence during than ways, reasonable other equally two lengthy conversation with Trotter on pocket in which the torn disappeared kidnapping, and was seen days before she day disap- of her them again jeans explained, among with her on could be her However, picture of events pearance. body by pulling lift a on the attempting to very cloudy p.m. after about 1:30 becomes pocket a door pocket catching on jury 1998. The could on December handle, object tree limb or other while reasonably infer from the evidence that Likewise, position of moving body. voluntarily campus left the Trotter and bra is consistent with Trotter’s blouse truck, appellant in his went to McDonald’s appellant moving body by pulling her on food, pick up some and then went to showed her torso. Forensic evidence appellant’s Eyewitness testimony trailer. appellant’s paint flecks of from the bed of placed appellant at his trailer around 3:00 clothing, truck but no evi- on Trotter’s p.m., phone lead to the cell records or alive dence shows whether she was dead appellant inference that went to the area deposited on the cloth- paint when the around Sam Houston National Forest for a A could be ing. reasonable inference while about that same time. at the appellant made that killed Trotter However, presented no evidence was taking body trailer before her prove a still-living took woods, as the described circumstances involuntarily. Trotter to the woods With living passenger would indicate that involuntary out evidence of the restraint or truck, in the cab of the not would ride transport a living person, there can be the bed. finding kidnapping. no See Herrin v. *16 - murder, support capital To a verdict of -, 2002 S.W.3d WL appellant that prove the state must was 31839153, 73,987, Tex.Crim.App. 2002 2002) (Hol 18, kidnapping attempting or to the course (Tex.App. LEXIS 238 Dec. of comb, also, Majority Op.). kidnap J. See Melissa when he murdered her. Gribble (Tex.Crim. 19.03(a)(2) 72 n. 16 (emphasis § add Tex. Pen.Code n App.1990) (plurality op.) (noting that ed); Herrin, at -, “[w]e at The record is 8. accept purposes analysis for of that a dead appellant that showing devoid of evidence denied, body kidnapped”), cannot be cert. kidnapping process was of Trotter 111 115 L.Ed.2d U.S. S.Ct. she murdered. Evidence admit when was (1991). prove at trial was sufficient to that ted Trotter, appellant killed but this is not According expert, to the medical state’s enough. The state had the burden of body showed no defensive that in the course of kid wounds, restraints, proving he was no indication of and no kidnap Trotter expected napping attempting such as would be if she to scratches finding appellant kidnapped ways determining supports a that 3. While there are two evi- insufficiency, applying only sexually assaulted Trotter. With no factual I am record, because, clearly any infer- dence in the the evidence is so first method aside from clearly wrong admittedly to make the verdict ences created an fabricated let- weak as ter, unjust. there is no evidence in the record that only when he murdered sentially her. The state failed non-existent. The evidence to do so. presented prove appellant state that sexually testimony assaulted Trotter was appellant that The letter fabricated and from its medical examiner she found a gave copy to Ronnie Coleman to of- was wall, vaginal discoloration on Trotter’s by appellant fered to show that someone may subsequently which she determined while, had else committed the crime at the have been bruise. time, same the state offered the letter to appellant show took Trotter medical questioned, When the State’s woods and thereafter her. choked Carter, that she expert, Joye Dr. testified full letter is falsehoods inconsisten- when the dis- accurately could not assess cies, many of its contentions are not occurred; best coloring estimate supported by or directly are contradicted may it have been give she could was that by the remainder of the evidence in the to Trotter’s days prior up received to three parts record. Other ormay the letter way that she had no death. She conceded (cid:127) fact, may factually not be correct. In ac- discoloring oc- determining how the translator, cording to the we cannot even it was a result sexual curred or whether exactly says. be sure what letter could that such a bruise intercourse and evidence, supporting Without we should sexual activi- developed have from normal not speculate assume or fact, ty. testified that she Dr. Carter killed Trotter the woods. penetration found any no evidence of above, anus, As noted the state’s own vagina, medical Trotter’s or mouth. Because expert days testified that there were no defen- we know little of Trotter’s life in the sive wounds or body death, impor- scratches on Trotter’s before her we are left with and no tant, example, indication she had been re- For questions. unanswered so, any way. illogical rely strained in It is If did sexually active? she was she letter, aon faked that cannot even be else have sexual relations with someone accurately, translated to corroborate what her death? days the three before otherwise weak forensic and inconclusive Appellant’s expert disputed the conclu- evidence to reach the conclusion that the vaginal sion that the discoloration of the factually sufficient show bruise, testified, wall was in fact a but as Trotter, appellant kidnapped while Carter, that, bruise, did Dr. if it were decrying same time the letter as bla- during such bruise could be sustained tantly bogus. Appellant’s normal sexual ex- intercourse. *17 evidence, alone, standing is too pert also testified that Trotter’s medical support weak to factual that conclusion in- pelvic records indicated that she had appellant was in the of abducting course flammatory pelvic disease and that inflam- Trotter when he killed her. Without cause of such matory disease could be the more, impossible I it find to hold no a discoloration. The showed evidence factually in evidence this case was suffi- scratches, signs defensive wounds appellant killed Trotter cient to show testimony that hair restraint. There was kidnapping attempting in the course of bed, samples appellant’s but were found kidnap point her. I would sustain they were expert the forensic testified error number two. not from Trotter. There was also evi- disheveled, four, dence that
Regarding point appellant’s of error number bed was no con- supporting underlying absolutely the evidence of- but there was her aggravated necting fense of sexual assault is es- Trotter to the bed. When I recovered, the record. believe jeans supported by on and body was her were factually insuf- in this case is fly was no evidence of the evidence closed. There above, capital support a torn a conviction of penetration. As noted back ficient to ways evidence is pocket may occur a number of I believe that murder. prove actual or at- for mur- unequivocally support does not a conviction sufficient more, der, tempted sexual assault. Without as a lesser-includ- was included which the evidence is too weak to sustain ver- jury charge, in the trial court’s ed offense capital finding murder based on a dict for finding I make a but because would of sexual assault. in- insufficiency legal rather than factual to us sufficiency, only option available on the that Ronnie Again, reliance letter a new remand to the trial court for is to copied misplaced. Coleman Statements trial.4 letter, interpreted by in the as Per- bogus (“ ‘I began
ez to talk about sex when she I respectfully dissent. go she had to home.’ He hit her
said eye,
the left and she fell to the floor of her
car.”), are not “sufficient to confirm rejection of advances his sexual
began cycle of to her violence that led sex, Talking hitting
death.” about even following
someone a conversation about sex, aggravated is not an sexual assault. RYLANDER, Appellant, Robert Again, illogical it is to both characterize copied forgery letter as a blatant cre- attempt escape punishment ated an The STATE of Texas. evidence, by creating phony and to then 739-02, 740-02, Nos. 741-02. proof use the letter as factual of sexual assault, Texas, especially Appeals fact that light of the Court of Criminal accurately the letter could not translat- En Banc. produced ed. The state no evidence at 26, 2003. March supports finding appellant
trial that had consensual sexual intercourse with
Trotter, sexually much less that he as- I point
saulted her. would sustain of error
number four. is, best, a weak chain of infer-
There assumptions pointing to a con-
ences and kidnapped
clusion that or sexual- attempted either.
ly assaulted Trotter or assumptions
These inferences and are not *18 reviewing judgment its for that of the fact 4. If a court determines that substitute insufficient, the defendant’s legally either finder since this would violate evidence is it must acquittal judgment right jury. Clewis at 133. Accord an or reform the trial render reviewing ingly, a court must vacate convic a conviction of a lesser included of reflect factually based on insufficient fense. See Clewis v. tion * at -, a new trial. Tibbs (Tex.Crim.App.1996); and remand the cause for Herrin Florida, conducting sufficiency 457 U.S. 102 S.Ct. When a factual 25. however, (1982); review, 133. appellate Clewisat an court cannot L.Ed.2d