Nelson v. State

848 S.W.2d 126, 1992 Tex. Crim. App. LEXIS 220, 1992 WL 358404
CourtCourt of Criminal Appeals of Texas
DecidedNovember 25, 1992
Docket70711
StatusPublished
Cited by143 cases

This text of 848 S.W.2d 126 (Nelson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. State, 848 S.W.2d 126, 1992 Tex. Crim. App. LEXIS 220, 1992 WL 358404 (Tex. 1992).

Opinions

OPINION

BENAVIDES, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, Section 19.-03(a)(2). After the jury returned an affirmative finding on both of the special issues submitted under Article 37.071(b)(1) and (2), the trial court imposed the penalty of death. This case is before us on direct appeal.

I

SUFFICIENCY CLAIM

Appellant alleges that the evidence is insufficient to support the conviction; therefore, a review of the facts is necessary. James Randle Howard lived in an apartment at 3402 Garrott Street in Houston, Texas. Howard was known by his friends to be homosexual. On August 25, 1987, his downstairs neighbor, Joe Castag-no, came home at 6:00 p.m. Castagno was reading a paper when he heard an automobile arrive. From his window Castagno saw Howard and a young man carrying a plastic sack go upstairs to Howard’s apartment. Twenty to thirty minutes later Cas-tagno heard sounds which he described as “thuds and bumps” coming from Howard’s residence. About thirty minutes after this, Castagno saw the young man come down the stairs and enter Howard’s automobile. The man appeared to have difficulty starting the Honda and then getting it in proper gear, but soon he was able to drive the automobile away. Castagno did not observe the man carrying anything when he came downstairs, and later was unable to identify the appellant in a police lineup.

Howard did not report for work at Southwestern Bell at 11:00 p.m. as scheduled the night of August 25. He did not telephone his supervisor at anytime during the 11:00 p.m. to 7:00 a.m. shift and his co-workers became worried. They attempted to telephone the victim’s residence, but there was no answer. Ann Hatteberg, a friend and co-worker for five years, drove by Howard’s residence, located in the Montrose area of Houston, during the night and noticed that Howard’s automobile, a black Honda, was missing. Later, Hatteberg contacted local hospitals and the police in an unsuccessful attempt to locate Howard. At the conclusion of her shift, Hatteberg and another co-worker, Doa Tran, drove back to Howard’s apartment. His automobile was still absent. Hatteberg and Tran obtained entry to the apartment complex, and, after knocking and getting no answer, Hatteberg broke a window and the two of them crawled inside.

Hatteberg observed a tray on the living .room floor containing marijuana. Hatte-berg was aware that Howard smoked marijuana. On the coffee table she saw a beer can, and this struck her as unusual because, she testified, Howard did not drink. She also observed black leather gloves on the couch, which she regarded as unusual because she did not think Howard would wear black leather gloves in August. At trial the gloves were identified as similar to [129]*129a pair owned by Howard. Blood was discovered on the right hand glove. After a brief search, Hatteberg and Tran came to the bedroom door. The door was locked, and Hatteberg broke in. ' She and Tran found Howard’s body on the floor in a large pool of blood.

Aurelio Espinóla, deputy chief medical examiner for Harris County, testified at trial that Howard had suffered a number of blows to the body and had been stabbed fifteen times. He had a fractured skull and died as a result of blood loss.

In the bedroom near Howard’s body police discovered a bloody ten-pound exercise bar and a butcher knife which, Espinóla testified, were instruments that could have made wounds consistent with Howard’s wounds. In addition to the butcher knife and exercise bar, police found a bloody steak knife and, on the bed, a telephone whose cord had been severed. Also on the bed were various papers and a suitcase containing pornographic material. Appellant’s fingerprints were lifted from a piece of paper on the deceased’s bed, a lighter on the floor, the bathroom door, and a can of Miller Lite beer that had been retrieved from the kitchen trash can.

Katherine Ann Howard, the deceased’s sister, and her parents later came to Houston to collect his personal property. Howard owned an expensive stereo system, television, and two video cassette recorders, all of which were found in his apartment. However, Katherine Howard discovered that missing were a gold necklace, all of her brother’s watches, including a Gucci watch, his camera and lenses, and several shares of stock. The safe was open and empty and the key to it was missing.

Michael Gramblin testified that he met appellant on either August 25 or 26 and at that time appellant was driving a relatively new gray or black compact automobile. Gramblin had never seen him in such a nice vehicle. Gramblin testified that he visited appellant in jail where appellant told him not to tell the prosecutors about the automobile. Gramblin was aware that appellant had financial problems. Sharon Ham-brick, appellant’s sister, also testified that appellant was having financial problems.

Early in the afternoon of August 28, Todd Janke, a Houston police officer, was working his second job as security patrol for an apartment management company. Janke observed appellant operating a motorcycle with a faded rear license plate. Appellant drove the motorcycle off the premises of the apartment complex Janke was patrolling, onto a public street, and then back to the apartment complex about fifteen minutes later. When appellant stopped, Janke approached, determined that the license plate was expired, and asked appellant for some identification. When appellant opened his wallet, Janke observed a plastie baggie in it, which was later determined to contain cocaine. Appellant was arrested.

At about 9:45 p.m. on August 28, Houston Police Detectives D.L. Bacon and John Burmester met with appellant and took what was to be the first of two statements from him. In his first statement appellant said that he, a person named Mike, and Howard had driven to Howard’s apartment after smoking marijuana. Nothing in the statement indicates why they went to the apartment. Ultimately, Mike and Howard began to argue. The statement then reads, somewhat cryptically, “Mike and the man [Howard] then went into the bedroom where they began yelling. The man bloody. Mike then handed me a duffle bag, a two-way speaker and another smaller bag. Mike then went back in the room, and I heard the man start yelling. Then it became very quiet.” According to the statement, appellant and Mike drove to various locations in Howard’s automobile. The statement closed by noting that a cassette player and speakers might be at the apartment of Sharon Hamrick, appellant’s sister. After taking this statement Bacon and Burmester transported appellant to the Hamrick’s apartment. From Hamrick’s apartment they retrieved a Sony Walkman and a set of speakers. Doris Nelson, appellant’s common-law wife who was living at Hamrick’s apartment with her husband, testified that an acquaintance of appellant, David Jolly, had brought the Sony Walk[130]*130man and speakers to her. At trial these items were determined by serial number and receipt to belong to the deceased. In addition, Bacon and Burmester recovered a pair of earrings from another tenant who lived in the same apartment complex as Hamrick. Ann Hatteberg testified that the earrings had been presents she had given to Howard.1

Early on the morning of August 29 Detective Burmester took a second statement from appellant. The statement read:

I have already made one statement about the guy that picked me up in the black Honda car. What I said in that Statement [sic] was not all true.

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Bluebook (online)
848 S.W.2d 126, 1992 Tex. Crim. App. LEXIS 220, 1992 WL 358404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-state-texcrimapp-1992.