Reynolds v. State

489 S.W.2d 866, 1972 Tex. Crim. App. LEXIS 2312

• Court: Court of Criminal Appeals of Texas
• Decided: May 3, 1972
• Docket: 44841
• Status: Published

Opinions

OPINION

ODOM, Judge.

This appeal is taken from a conviction for the offense of murder. The punishment was assessed by the jury at life imprisonment.

Appellant challenges the sufficiency of the evidence to support the conviction. She argues that the state’s case is based upon the testimony of an accomplice witness whose testimony is not corroborated.

On December 9, 1969, Joe Sandoval, an employee of the Texas Highway Department, was mowing grass beside Farm Road 693, at a point approximately two miles southwest of Brackettville, when he discovered the body of a deceased adult male. The body had decomposed to the extent that an identification was not made, and no identification papers were found near the body.

Local law enforcement authorities were immediately notified, and the body was removed to Del Rio, where an autopsy was conducted. Jack Mercer, a fingerprint expert with the Department of Public Safety, was also contacted. Mercer took fingerprints and sent one copy to the Federal Bureau of Investigation in Washington, D.C. These fingerprints established the identity of the deceased as James R. Reynolds, the husband of appellant.

Dr. Ruben C. Santos, the Chief Bexar County Medical Examiner, performed an autopsy on the body of James R. Reynolds on December 11, 1969. The autopsy report signed by Dr. Santos and introduced into evidence, relates that death resulted from “. . . multiple head injuries (blows caused by blunt instrument with force) with multiple depressed fractures of the skull, brain injury and throat injury, probably due to manual strangulation.” Dr. Santos also concluded in his report that the death “more likely occurred about the 4th or Sth day of December, 1969.”

The deceased was a sergeant in the United States Air Force. On November 26, 1969, he had been scheduled to board a plane at Laughlin Air Force Base for his new duty station in Vietnam. He had missed this flight, and the Air Force had immediately notified the Del Rio Police Department that he was missing. Included in the missing persons report was a description of Sergeant Reynolds’ automobile, a blue 1968 Chevrolet Impala bearing Texas license number HRN 264.

On that same day, Officer Tom Bir-trong, of the Del Rio Police Department, received a call from his dispatcher that a vehicle was presumed abandoned under the San Felipe Creek Bridge on Highway 277. Officer Birtrong investigated the report and found a blue 1968 Chevrolet stuck in the mud under the bridge. He ran a check on the registration of such vehicle and found that it was registered in appellant’s name.

On the night of December 9, 1969, a meeting was held at the office of Texas Ranger Grady Sessums in Del Rio to discuss the investigation. In attendance at that meeting were Ranger Sessums, Ranger Sergeant John Woods, and Kinney County Sheriff J. A. Sheedy. The meeting was held prior to the identification of the body, and it was learned at that time that a watch and two rings which had been taken from the body might possibly belong to the deceased. This tentative identification of these items coupled with the Air Force missing persons report led Ranger Sessums to call on appellant.

Appellant was at this time in the hospital at Laughlin Air Force Base, where she had been admitted for an apparent overdose of pills in an attempt to commit suicide.¹ Ranger Sessums located appellant in the hospital, and on December 10, 1969, went there to talk with her. At the time of this first discussion with appellant, she was under no suspicion. She identified the watch and rings as being of the type owned by her husband. She was asked if she would give her permission for the officers to check her residence, a mobile trailer, to obtain fingerprints of her husband so that they could be checked with the prints taken from the body. Permission was given, and officers retrieved shaving lotion bottles and a hair oil bottle from the bathroom cabinet for the purpose of fingerprint tests and comparisons.

On December 11, 1969, Sessums again visited appellant at the hospital. She was told that her husband’s body had been identified. She was also given her “statutory warning” at this time.² After having been warned of her rights, she was asked if she would consent to another search of the trailer for more clues. Once again appellant consented to the search of her trail-erhouse. She also consented to a search of her automobile.

On December 12, 1969, appellant’s daughter, Linda Beryl Smith, came to the Department of Public Safety Office and volunteered information concerning the death of her step-father.³ In her written statement she accused appellant of having murdered the deceased.

A search of appellant’s trailer was conducted on December 13, 1969. Numerous items were seized, including whiskey bottles, a bedside table, a steel hammer, a bone fragment, and blood and hair specimens from a bedsheet, the walls, the ceiling, and the floor. The automobile⁴ was searched, and more blood stains were discovered. Samples of these blood stains were forwarded to the Department of Public Safety laboratory. Analysis of these stains revealed that these were blood type A, which matched the blood type of the deceased.

On August 3, 1970, prior to appellant’s trial, Linda Beryl Smith was granted immunity. She testified at appellant’s trial and was declared by the court, in the charge to the jury, to be an accomplice witness as a matter of law.

Linda Beryl Smith’s testimony reveals that she was living with appellant and the deceased on November 25, 1969. At 10:30 P.M. on that evening, she returned home from a date and saw the deceased asleep in his bedroom and appellant lying on the couch in the living room. She talked with appellant who told her that she “had somebody flying in to get rid of J. R.⁵ . get rid of him.” The alleged killer, a man named Monte Goode, was flying in that night and was scheduled to arrive in Del Rio at 2:00 A.M. The witness testified that she was not surprised by these statements by her mother, since appellant had been making statements like that for about four years and since she was always talking about getting rid of her husband when she was “drinking real heavily.” Appellant having been drinking heavily that evening, the daughter “half-way believed her and half-way didn’t.”

At approximately 2:30 A.M. on November 26, 1969, Witness Smith was awakened upon hearing the deceased make a “coughing, gagging, and a choking sound.” When she got out of bed to ascertain what was wrong, appellant told her to get back in her room. A few minutes later she again saw appellant, who appeared to be sober and “real scared.” She heard the back door of the trailerhouse open and, looking out a window, observed appellant, dressed in an orange plaid coat and pajamas, and a man, who she could not clearly see, place a blanket-covered body in the trunk of the family car. The pair returned to the trailer for a brief period and then left again, driving away in the car. The witness stated that, as soon as the couple had departed, she went into the deceased’s bedroom. There she found a trail of blood leading from the bed to the bathroom and a puddle of blood in the bathtub. The deceased was nowhere to be seen, the telephone in the deceased’s bedroom was gone, and the blanket on his bed was missing. She then returned to her room and went back to sleep.

At approximately 6:00 A.M., the witness was again awakened, this time by the appellant’s return. The pants of appellant’s pajamas were wet, and she had crawled into bed with her daughter in an attempt to go to sleep. Witness Smith asked her if she had drowned the deceased, and appellant’s response was that she had killed him with a hammer. Upon being asked where they had placed the body, the response was “that they had dumped him on the side of the road,” the road in question being the one from Brackettville to Eagle Pass. Further questioning elicited the statement from appellant that she had killed her husband for the insurance money and that Monte Goode was to get $10,000.00 for his part in the crime. The car had been abandoned when “. . .it bogged down because she was washing the trunk of the car out, and she said she threw the blanket in the creek, and the hammer, and the telephone she threw it out in the weeds beside the creek . . . .”⁶ The witness was warned not to mention the incident to anyone.

Mother and daughter then proceeded to clean the apartment. Appellant changed the sheets on the deceased’s bed and sprayed the bedside table with silver spray paint to cover blood stains. Linda Beryl Smith scrubbed the bathroom to remove blood stains and disposed of appellant’s keys. She testified that these actions were performed in order to conceal the crime and aid her mother. She also took the orange plaid coat, which her mother had worn, to the cleaners.⁷ She left instructions to remove the bloodstains on the coat and placed it in her mother’s name. The coat in question belonged to the daughter (Linda Beryl Smith).

Witness Smith further testified that she did not tell the story of the murder before she did because she wanted to help her mother and because she feared that, if she told it, Goode would return and kill her. She admitted that she had been granted immunity from prosecution. She stated that she had previously told June Slaven about the incident and that she and Slaven had driven out to the country on December 6, to look for the body. They did not find it. She further testified that she did not realize that she was the secondary beneficiary of the deceased’s insurance policy until after she had given the statement incriminating her mother.

June Slaven testified that she operated the Fisherman’s Lounge in Del Rio and that appellant had worked for her on occasion prior to November 26, 1969. She stated that during the summer of 1969, appellant “was drunk in the bar one night and she was kinda agitating a fight, and so I picked her up and took her out to the house.” She stated that appellant had told her that night that she was going to get rid of her husband. Appellant told Slaven that she would “split the insurance” with her if she would help kill the deceased. The witness also testified that Linda Beryl Smith had told her about the way in which deceased had met his death and that they had made an unsuccessful attempt to find the body.

On cross-examination, she admitted that she had previously told another lawyer that she did not know anything about the case. She also testified that she had attempted to adopt appellant’s grandchild, the illegitimate child of Linda Beryl Smith, but that appellant objected to her taking custody of the child after its birth.⁸

Jesse Mendez testified that he met appellant in 1967 and that, during the spring of 1968, appellant had offered him $10,000.00 to “get rid of her old man.” The payment was to come out of her insurance money. He stated that thereafter she inquired of him “a number of times” whether or not he was going to do this job for her. According to Mendez, appellant appeared to be serious about the proposition. Mendez had dated appellant and was unhappy when she refused to see him any longer.

As heretofore stated, the court charged the jury that Linda Beryl Smith was an accomplice witness as a matter of law. We agree that such charge was proper.

A witness who is an accessory to the person accused is an accomplice witness. e. g. Williams v. State, Tex.Cr.App., 464 S.W.2d 842; Jones v. State, 160 Tex.Cr.R. 479, 272 S.W.2d 368; Howard v. State, 92 Tex.Cr.R. 221, 242 S.W. 739. The fact that a witness, because of his or her relationship to the accused, cannot be prosecuted as such under Article 78, Vernon’s Ann.P.C.,⁹ does not affect his status as an accomplice witness. Gonzales v. State, Tex.Cr.App., 441 S.W.2d 539, at fn. 1; Jones v. State, supra; Turner v. State, 117 Tex.Cr.R. 434, 37 S.W.2d 747. Where, as in the instant case, a witness has voluntarily aided the accused in concealing the crime, he is an accomplice witness; and his testimony must be corroborated.¹⁰ e. g. Jones v. State, supra; Turner v. State, supra; Howard v. State, supra.

The test for determining the sufficiency of such corroboration is to eliminate the evidence of the accomplice from consideration and then ascertain whether there is other evidence of an incriminating nature which tends to connect the accused with the commission of the offense, e. g. Colunga v. State, Tex.Cr.App., 481 S.W.2d 866 (1972); Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311; Welden v. State, 10 Tex.App. 400. The mere showing that an offense occurred is not sufficient corroboration. Colunga v. State, supra; Odom v. State, Tex.Cr.App., 438 S.W.2d 912; Edwards v. State, Tex. Cr.App., 427 S.W.2d 629. Thus, evidence which verifies extraneous matters without tending to connect the accused to the crime is insufficient.

The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish his guilt. Otherwise, the testimony of the accomplice would be valueless. The corroborative evidence is sufficient if it tends to connect the accused with the crime, and it is the cumulative weight of such evidence which supplies the test. e. g. Colunga v. State, supra; Cherb v. State, supra; Rogers v. State, Tex.Cr.App., 461 S.W.2d 399; Dalrymple v. State, Tex.Cr.App. 366 S.W.2d 576; Hill v. State, 134 Tex.Cr.R. 163, 114 S.W.2d 1180; Banks v. State, 107 Tex.Cr.R. 221, 296 S.W. 563; Cooper v. State, 77 Tex.Cr.R. 209, 177 S.W. 975.

In the instant case the corroborative evidence shows: (1) that the body of appellant’s husband was found on December 9, 1969; (2) that the body was found beside a farm road which connects Brackettville with Del Rio; (3) that the cause of death was either manual strangulation or head wounds inflicted by a severe beating with a blunt instrument; (4) that death occurred on or about December 5, 1969;¹¹ (5) that deceased had type A blood; (6) that type A blood stains were found in appellant’s home and in the trunk of the family car; (7) that, in the spring of 1968 and in the summer of 1969, appellant had, while intoxicated, stated that she desired to kill her husband and had asked June Slav-en and Jesse Mendez for their assistance in carrying out this plan; (8) that the deceased was heavily insured; (9) that the family car was discovered stuck in the mud beside San Felipe Creek; and (10) that, prior to going to the police, the accomplice witness had made a prior consistent statement to a friend concerning the death of her step-father.

The prior consistent statement made by Linda Beryl Smith to June Slaven cannot be considered in determining the sufficiency of the evidence. Such a statement is hearsay and is therefore without probative value, even if admitted without objection. Cherb v. State, supra. Moreover, this statement was made by the accomplice witness, and Article 38.14, supra, requires that accomplice testimony be corroborated by other evidence.

The remaining corroborative evidence shows the commission of the crime, a possible motive for appellant to have committed the crime, and prior threats by the appellant to commit such crime. Apart from the testimony of the accomplice witness, Linda Beryl Smith, there is no evidence which demonstrates that the deceased met his death on November 26. The autopsy report places the date of death as being approximately nine days later. Omitting the testimony of the accomplice, there is no evidence which shows that appellant did anything in connection with the crime except make drunken threats approximately six months and a year and a half earlier.

Despite the thorough investigation which was conducted in this case, the evidence is insufficient to corroborate the testimony of the accomplice witness.

The judgment is reversed and the cause remanded.

1 . Thomas Rose, who was present during the attempt and who had taken appellant to the hospital, testified that appellant told him she was attempting to commit suicide because her daughter had given her baby away. The suicide attempt occurred on December 6, 1969.

2 . A warning is not required prior to a request for consent to search. However, the giving of the warning in such circumstances is good police practice. Cf. DeVoyle v. State, Tex.Cr.App., 471 S.W. 2d 77.

3 . Sessums bad talked with Linda Beryl Smith earlier that same afternoon. At that time she had told him that the last time she had seen the deceased was at approximately 10:30 P.M. on the night of November 25. Later that same evening, she contacted Sessums and made the above mentioned statement.

4 . The record reflects that this automobile was the same as the one found stuck in the mud on November 26.

5 . The deceased was known as “J.R.”

6 . These items were apparently never recovered. The hammer introduced by the state was seized at the trailer and never connected to the crime.

7 . The coat was taken to the cleaners on December 9, 1969.

8 . In order to understand the background of tliis case, it is necessary to understand the relationship between the various parties. The record reflects that Linda Beryl Smith had been “going steady” with a young Air Force officer who refused to discuss marriage until the child was out of the picture. Linda was therefore quite anxious to give the child to June Slaven. Appellant wanted her and deceased to adopt the baby. The deceased had agreed to this plan. While Linda had agreed to wait to make a decision on this matter until it could be determined whether appellant and deceased could deal with their marital problems, nothing had been resolved by the time deceased was to leave for Vietnam. Slaven was angry with appellant for attempting to block the adoption; Linda Beryl Smith intensely disliked both the deceased and appellant. Linda blamed appellant for the dissolution of the marriage with Linda’s father, and was attempting to get her mother to re-marry her father. She viewed the deceased as an obstacle to this plan. The deceased was upset at Linda for attempting to destroy his marriage. During the period immediately preceding his death, deceased had agreed to give appellant a divorce. This matter, however, does not seem to have been pursued; and according to Linda Beryl Smith, the relations between him and appellant had improved just prior to his death. Thus, at the time of the scheduled departure of the deceased, no resolution had been made of either the marital problems or the child custody. On December 5, 1969, Linda Beryl Smith placed her child in the custody of June Slaven. On December 6, 1969, appellant and her daughter had argued about this; and appellant attempted suicide.

9 . This statute provides: “The following cannot be accessories; The husband or wife of the offender, his brothers and sisters, his relations in the ascending or descending line by consanguinity or affinity, or his domestic servants.” See also Morrison & Blackburn, The Law of Principals, Accomplices & Accessories, 1 V.A.P.C. XIII.

10 . Article 38.14, Vernon’s Ann.O.O.P., provides :

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed ; and the corroboration is not sufficient if it merely shows the commission of the offense.”

11 . It should be noted that there are two possible dates of death in the instant ease. The autopsy report concludes that death most likely occurred on the 4th or 5th of December. The accomplice witness testified that death occurred in the early morning hours of November 26, approximately nine days earlier.