McLain v. State

831 S.W.2d 815, 1991 Tex. App. LEXIS 3205, 1991 WL 279561
CourtCourt of Appeals of Texas
DecidedDecember 31, 1991
DocketNo. 12-90-00102-CR
StatusPublished

This text of 831 S.W.2d 815 (McLain v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLain v. State, 831 S.W.2d 815, 1991 Tex. App. LEXIS 3205, 1991 WL 279561 (Tex. Ct. App. 1991).

Opinion

PER CURIAM.

Appellant was convicted on her plea of guilty of the offense of desecration of a venerated object. The jury assessed punishment at six months in jail and a $2,000.00 fine. We will affirm.

Appellant was charged by information with “intentionally, or knowingly dese-cratpng] a place of burial by defacing, damaging and physically mistreating the grave of SAM HARRIS located on Denman Road 2-⅜ miles Northwest of Overton Smith County, Texas in a way PHYLLIS I. MCLAIN knew would offend one or more persons likely to observe or discover her actions” on or about May 15, 1988, without legal authority. After her plea of guilty was accepted by the trial court, appellant brought an oral motion in limine seeking to prevent admission of evidence of abuse of a corpse on the ground that such evidence would show an extraneous offense. She argued that once the grave was disturbed, the offense with which she was charged was complete. From the argument of counsel for both parties it is apparent that they disagreed as to when the offense of desecration of the burial place stopped and when the offense of abuse of a corpse began.

In an attempt to obtain a preliminary ruling from the trial court, the parties stipulated that the evidence would include the testimony of Teresa Ferguson that appellant tried to break the corpse’s neck, pulled on the corpse’s leg, pulled the tie off the corpse, and tried to pull the head and a leg off of the corpse; the testimony of Louis Willis Jackson that appellant suggested they “take the head home” and was in the grave trying to pull the head off the corpse; the testimony of Linda Kay Spencer that appellant was in the grave pulling on things and made the statement that she was going to take the head off. The trial court ruled initially that the testimony of appellant being in the grave pulling on parts of the corpse would be admissible. The state argued that the evidence was admissible to show the entire transaction, to show the element of the offense that the conduct would seriously offend someone, and to show intent, motive, preparation, plan, absence of mistake. Appellant argued that the evidence of an extraneous offense did not fall within one of the acknowledged exceptions, that the offense charged was completed on May 13, 1988,1 and any other conduct was not relevant, and was highly inflammatory and prejudicial. The trial court ruled that evidence of the appellant trying to pull off the corpse’s leg and head was admissible, as was evidence of her pulling on the clothing of the corpse. Appellant was allowed a running objection to all such evidence.

In the State’s opening statement, the prosecutor referred to the digging up of the grave and appellant getting down into the grave. Appellant objected to those remarks. The state’s first witness was Willie Pearl Austin, the seventy year old niece of [817]*817Sam Harris. Ms. Austin testified that she was notified that something had happened at the cemetery where her uncle had been buried and she went out to the cemetery. When asked to describe what she saw there she said “Oh, I tell you when I went out there that it was something that I had never seen before, and it took a good man to be able to stand it. I was very disturbed of some of the things that I had saw.” When she said that she saw his hand on top of the grave, appellant objected. She testified that the corpse’s underwear was torn off and that his casket was all torn up. Photographs of the grave were admitted through Ms. Austin.

Louis Jackson, an eighteen year old, who was present during the offense, testified that on the night of May 13, 1988, at appellant’s suggestion, a group went to the graveyard where someone took a shovel of dirt from the grave, whereupon the dirt caved in down to some plywood. According to Jackson, on that night all that happened was that a shovel was used to hit the coffin. The next night, a group, including appellant, returned to the graveyard, finished digging up the grave and opened the coffin. Jackson testified that he found a man’s shirt on the ground next to where he was standing. He said that he saw appellant in the grave trying to pull the head off the corpse.

Linda Spencer testified that she was in the group that went to the graveyard on May 13, 1988. She testified that on that night everyone was just drinking, that nothing went on at the grave, other than maybe a shovel of dirt was removed from the grave. The next night, Spencer said, there was a lot of digging by appellant and two of the men who were with them. When the grave was opened, the smell caused Spencer to move away and she did not view it after it was opened.

Teresa Ferguson, a third person present at the grave yard, also testified. She said that the reason the group returned the second night was to finish digging up the grave. Ferguson said that the appellant had stated that she wanted to find a grave with “Jason” on it and dig it up. Ferguson said that she stayed in the car and did not ‘participate or actually see what went on at the grave. When the others, including appellant, got back in the car, Ferguson noticed a bad odor, and the windows had to be rolled down. According to Ferguson, appellant said she needed a bath because she stunk. She testified that appellant laughed about the event. She also said she heard appellant say that “she tried to get the head off, and she grabbed it and pulled it up, but the stuff had gone up underneath her fingernails.”

Appellant put on one witness who testified concerning appellant’s mother’s poor health, appellant’s current employment, her lack of prior convictions and her fitness for probation.

The sole issue at the trial was what punishment to assess. Wilkerson v. State, 736 S.W.2d 656, 659 (Tex.Cr.App.1987). A guilty plea does not limit the State’s right to offer evidence; relevant facts admissible under a not guilty plea are admissible under a plea of guilty. Id.

Appellant’s sole point on appeal is that the evidence about what happened to the corpse constituted inadmissible evidence of extraneous offenses. She argues that any evidence other than that about disturbing the grave, showed abuse of a corpse, a separate offense from that to which she plead guilty.

Appellant was charged with and plead guilty to the offense of desecration of a venerated object, specifically a place of burial. That offense is defined by statute as “intentionally or knowingly desecrates a place of worship or burial.” Tex.Penal Code Ann. § 42.09(a)(2) (Vernon 1989) (current version at Tex.Penal Code Ann. § 42.-09(a)(2) (Vernon Supp.1991)).2 The statute defines “desecrate” as meaning “deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” Tex.Penal [818]*818Code Ann. § 42.09(b) (Vernon 1989). The statute does not define “burial place.”

The offense of “abuse of a corpse” is defined by the Penal Code, as relevant this case, as “intentionally or knowingly disinters, disturbs, removes, dissects, in whole or in part, carries away, or treats in a seriously offensive manner a human corpse.” Tex.Penal Code Ann. §

Related

Grady v. Corbin
495 U.S. 508 (Supreme Court, 1990)
Willis v. State
790 S.W.2d 307 (Court of Criminal Appeals of Texas, 1990)
Wilkerson v. State
736 S.W.2d 656 (Court of Criminal Appeals of Texas, 1987)
State Ex Rel. Smith v. Blackwell
500 S.W.2d 97 (Court of Criminal Appeals of Texas, 1973)
Montgomery v. State
170 S.W.2d 750 (Court of Criminal Appeals of Texas, 1943)

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Bluebook (online)
831 S.W.2d 815, 1991 Tex. App. LEXIS 3205, 1991 WL 279561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclain-v-state-texapp-1991.