Rodriguez v. State

697 S.W.2d 463, 1985 Tex. App. LEXIS 12240
Court of Appeals of Texas·Decided September 4, 1985·No. No. 04-84-00301-CR·Published·Cited by 2 cases

Opinions

OPINION

ESQUIVEL, Justice.

Appellant was indicted for the murder of Jimmy Ellingwood. After a change of venue, appellant was convicted by a jury for the offense of murder and assessed punishment of twenty-two years’ confinement in the Texas Department of Corrections. Appellant presents three grounds of error.

In the early morning of May 15, 1983, Jimmy Ellingwood was shot twice at his home in Menard, Texas. Although his condition improved for a time, he suffered a relapse and died on May 25, 1983. Appellant complains of the State’s introduction of statements made by Ellingwood in which he named appellant, a girlfriend, as having shot him. Appellant put on several alibi witnesses whose testimony was that the appellant was elsewhere and could not have shot Ellingwood.

In ground of error number one, appellant alleges the trial court erred in admitting prejudicial opinion evidence, concerning facts in issue, as to the thoughts of Elling-wood.

In ground of error number two, appellant alleges the trial court erred in admitting, over her timely objection, dying declarations of Ellingwood without a proper predicate.

In ground of error number three, appellant alleges the trial court erred in holding the evidence sufficient to sustain the conviction because the evidence was insufficient to establish the appellant’s identity as the actor perpetrating the alleged offense. Appellant alleges the trial court erred in holding the evidence sufficient to sustain the conviction because there was insufficient evidence to establish the identity of the appellant as the actor perpetrating the alleged offense. In support of her contention, appellant argues that the State only had two items of evidence which implicated appellant in Ellingwood’s death — the statements submitted as dying declarations and the statement by Trina Ellingwood that she heard her father yelling “Lydia” and appellant saying “be quiet.”

Appellant appears to argue that the trial court erred in admitting hearsay statements of Ellingwood as related to Terry Zimmerman, Steve Whitson and Bobby Danford in the ambulance on the way to the hospital and to James Lobstein, an uncle, at the hospital three days before his death, and that if such testimony is properly excluded, the remainder of the record does not sufficiently show her connection with the death of Ellingwood in order to sustain a conviction.

The significance of the contention is that if it is sustained a retrial would be barred. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Therefore we will first consider appellant’s third ground of error even though reversal may be based on another ground. See Hooker v. State, 621 S.W.2d 597 (Tex.Crim.App.1980). We will first eliminate from consideration the hearsay statements of Ellingwood to Zimmerman, Whitson, Danford and to his uncle, James Lobstein and we will examine the evidence of the other witnesses to ascertain if there is any inculpatory evidence which tends to connect the accused with the commission of the offense and to sustain the conviction.

The evidence identifying appellant is circumstantial and thus is sufficient to support a conviction only if the facts proved support a reasonable inference that appellant committed the crime and exclude to a moral certainty any inference consistent with appellant’s innocence. Burns v. State, 676 S.W.2d 118, 120 (Tex.Crim.App.1984); Galvan v. State, 598 S.W.2d 624, 627 (Tex.Crim.App.1979). The evidence in support of conviction must exclude every [466]*466other reasonable hypothesis except that of appellant’s guilt. Burns, 676 S.W.2d at 120. The standard of review for sufficiency of the evidence is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983). If the evidence supports an inference other than the guilt of appellant or an inference other than a finding of one of the essential elements of the crime, a trier of fact cannot rationally find an accused guilty beyond a reasonable doubt. Id. at 472. To answer this ground of error, we must review the evidence adduced in an attempt to prove that appellant was in fact the perpetrator of the offense.

The witness, Ed Rainey, testified for the State that he saw appellant in her automobile going down Highway 83 at approximately 1:00 A.M. the morning of the murder. He further testified that Highway 83 is the road which leads from Andy’s Club, a location that appellant’s alibi witnesses testified she was at at the time of the murder, to appellant’s house. Another State’s witness, Ledezma, testified that the car which she had seen coming from a street near Ellingwood’s home onto Highway 83 was gold and that she could not identify its driver. Medical testimony established that the slugs recovered from Ellingwood were both from the same .22 caliber weapon, but it was not determined whether that weapon was a pistol or a rifle. During the course of the investigation, it was discovered that a .22 caliber handgun owned by Ellingwood was missing from his bookcase headboard. Trina also testified that she had seen her father’s car at appellant’s house at noon on Thursday before the shooting and that it did not seem strange to her to see it there.

On cross-examination of the investigating officer, Sheriff Rendon, testimony was elicited that no attempt was made to lift fingerprints from the crime scene. Further, there was testimony that although appellant was arrested within an hour of the shooting, no attempt was made to check her for gun powder or to run any type of powder test. The only weapon ever searched for was Ellingwood’s .22 caliber pistol which was never found. No investigation was made to see if Ellingwood’s ex-wife owned a .22 caliber pistol or to compare ballistics on any other .22 caliber pistol in Menard. There was also testimony that Ellingwood kept his handgun in the bookcase headboard while he was married to his ex-wife, Mary Helen Carey. It was also shown that Carey told Ellingwood that he had been shot with his own gun; that she was the beneficiary of his $10,000.00 life insurance policy; and that she had returned to Menard two weeks before the shooting.

The appellant’s witnesses, Cervantes, Garcia and Rodriquez testified that appellant was with them at Andy’s Club until the dance was over at 1:00 A.M.; that Garcia and her husband drove away from the club before Cervantes and appellant; that Garcia and her husband drove directly to Cervantes’ house some ninety feet from Ellingwood’s house; that Garcia and her husband were in the driveway a couple of minutes until Cervantes got there and that they had been inside Cervantes’ house for a couple of minutes when the ambulance arrived at Ellingwood’s house.

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Rodriguez v. State, 697 S.W.2d 463, 1985 Tex. App. LEXIS 12240 (Tex. Ct. App. 1985).

697 S.W.2d 463 (Rodriguez v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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