Selman v. State

673 S.W.2d 623, 1984 Tex. App. LEXIS 5519
CourtCourt of Appeals of Texas
DecidedMay 11, 1984
DocketNo. 07-81-0023-CR
StatusPublished

This text of 673 S.W.2d 623 (Selman 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
Selman v. State, 673 S.W.2d 623, 1984 Tex. App. LEXIS 5519 (Tex. Ct. App. 1984).

Opinion

ON REMAND

REYNOLDS, Chief Justice.

On original submission, we reversed the judgment decreeing appellant Sam Sel-man’s conviction for voluntary manslaughter because the court’s charge was fundamentally defective for authorizing his conviction on a theory not alleged in the indictment, but we declined to entertain appellant’s challenge to the sufficiency of the evidence until the jury has had the opportunity to evaluate it under correct instructions. Selman v. State, 627 S.W.2d 543 (Tex.App.—Amarillo 1982, pet’n granted). Upon granting the State’s petition for discretionary review, the Court of Criminal Appeals, concluding that we reached the right result in holding that the charge was fundamentally defective, affirmed that action; but the Court, declaring that our declination to review the sufficiency of the evidence was inappropriate, remanded the cause for our consideration of the sufficiency of the evidence. Selman v. State, 663 S.W.2d 838 (Tex.Cr.App.1984). Now, holding that the evidence is sufficient to sustain the conviction, we adhere to our previous judgment of reversal and remand.

The State alleged, and the jury found, after being advised of the restrictions which the law places upon them in condemning one on circumstantial evidence,' that appellant did, with his hand and fist, strike and beat Jeral Ray Kirkland about his head and body, thereby causing Kirkland’s death. Appellant challenges the sufficiency of the evidence to support a conviction for voluntary manslaughter on the rationale that since the evidence reveals four possible causes of Kirkland’s death, every reasonable hypothesis except his guilt was not excluded.

This cause was tried, appealed and briefed before the determination on rehearing in Hankins v. State, 646 S.W.2d 191, 197 (Tex.Cr.App.1983), that a charge on circumstantial evidence is improper, and when the standard for review of the sufficiency of the evidence in circumstantial evidence cases was different from the standard employed for review in direct evidence cases. See e.g., Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983). Subsequently, on rehearing in Wilson, it was decided that the standard for review in both circumstantial and direct evidence cases is, as announced in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Wilson v. State, supra, at 471. The standard, therefore, does not admit to a review of circumstantial evidence in the light of the presumption that the accused is innocent. Houston v. State, 663 S.W.2d 455, 456 (Tex.Cr.App.1984).

Yet, notwithstanding that we must look at all of the evidence in the light most favorable to the jury’s guilty verdict, id., it is said that if the circumstantial evidence supports a reasonable hypothesis other than the guilt of the accused, a finding of guilt is not a rational finding. Wilson v. State, supra, at 472. Thus, under appellant’s challenge to the sufficiency of the evidence, we will review all of the evidence to determine if it supports a reasonable hypothesis other than appellant’s guilt.

About 4:30 p.m. on 23 May 1979, appellant and Kirkland were seen in Kirkland’s car with appellant driving toward Lubbock on the road from Shallowater. Approximately 45 minutes later, Kirkland was seen alone driving his car on the road toward his home in Shallowater.

[625]*625At about 5 p.m. on that day, appellant hurriedly drove his pickup to the business of James L. Jensen in Lubbock, where Larry Allen Blackburn was present, to use the telephone, saying, “I have got myself into some real trouble now.” Jensen observed that appellant had a blood smear on his face, blood on his hands, and a smear of blood on his shirt. When Jensen asked what happened, appellant explained that he had been out with Kirkland, had been in a fight with him, had hurt Kirkland “real bad,” and according to Blackburn, “left him laying on the side of the road, more or less to die.”

Appellant telephoned a friend, saying, so Jensen reported, that he had had a fight with Kirkland and that “I have really got myself into a mess this time.” Next, appellant called a girl friend, telling her that he had had a fight with Kirkland, that he “had punched his lights out,” and that he knew he “was in real trouble.” He then telephoned two bail bond companies.

After the telephone calls, appellant repeated to Jensen and Blackburn that he had had a fight with Kirkland, had knocked him down, and had left him “in pretty bad shape.” Asked by Jensen how serious it was appellant said, “I don't know. I thought I had killed him.” He indicated he had given Kirkland mouth-to-mouth resuscitation and then left.

Following a conversation with Blackburn, the two men who had seen appellant and Kirkland together, and then Kirkland alone, on the Lubbock-Shallowater road, went to Kirkland’s trailer home in Shallo-water before 6 p.m. The second time they knocked, Kirkland came to the door clad in his shorts. He had a mark, like a cut or bruise, on his right forehead and on his left jaw. He seemed as if he had been drinking, he acted drunk, he slurred and mumbled his words, and he looked “pretty bad.”

Kirkland’s wife, Wanda, testified that when she arrived home about 7 p.m., he looked as if he had been in a fight. He was vomiting and off balance; however, she thought he had been drinking and would be all right. During the night, she heard Kirkland fall, apparently over a floor fan, and found him on the floor. When she saw blood on his pillow case, she thought he had sustained a cut to the back of his head when he fell; however, she decided she was mistaken when she did not see a cut. Neither the doctors who later saw Kirkland nor the mortician found any cut on the back of his head. A deputy sheriff, who had sold mobile homes, examined the trailer home and testified that if Kirkland had tripped over the fan, he would have hit the flimsy opposite wall.

The following day, May 24, when Mrs. Kirkland found Kirkland on the floor by the bed “out of his head,” he was admitted to the hospital. When admitted, Kirkland was found to have fresh, i.e., two- or three-day old, bruises on his chest and a draining abrasion on the right side of his head with dried blood matted in his hair. Despite medical treatment, he died on 29 May 1979.

Kirkland’s attending physician was Dr. Paul Meyer, who testified that Kirkland had a history of diabetes and high blood pressure, which subjected him to a more severe injury if struck than the average person would sustain. Based upon Kirkland’s history, condition and symptoms signifying damage to the left side of the brain, he suspected trauma, i.e., a physical injury caused by outward force which could be caused by a blow, a fall, or a blow that caused a fall. Trauma can result in a bruise on the brain which will cause swelling, a distortion that increases pressure on the brain which can lead to a coma and death.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Wilson v. State
654 S.W.2d 465 (Court of Criminal Appeals of Texas, 1983)
Hankins v. State
646 S.W.2d 191 (Court of Criminal Appeals of Texas, 1983)
Jones v. State
582 S.W.2d 129 (Court of Criminal Appeals of Texas, 1979)
Gonzales v. State
505 S.W.2d 819 (Court of Criminal Appeals of Texas, 1974)
Selman v. State
627 S.W.2d 543 (Court of Appeals of Texas, 1982)
Selman v. State
663 S.W.2d 838 (Court of Criminal Appeals of Texas, 1984)
Houston v. State
663 S.W.2d 455 (Court of Criminal Appeals of Texas, 1984)
Smith v. State
180 S.W.2d 622 (Court of Criminal Appeals of Texas, 1944)
Phillips v. State
216 S.W.2d 213 (Court of Criminal Appeals of Texas, 1948)
Aguillar v. State
221 S.W.2d 242 (Court of Criminal Appeals of Texas, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
673 S.W.2d 623, 1984 Tex. App. LEXIS 5519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selman-v-state-texapp-1984.