Stewart v. State

703 S.W.2d 745, 1985 Tex. App. LEXIS 12749
Court of Appeals of Texas·Decided December 5, 1985·No. No. A14-84-720-CR·Published·Cited by 7 cases

Opinion

OPINION

ELLIS, Justice.

Appellant, Brenda Stewart, appeals from the judgment of conviction for the offense of murder. The jury found appellant guilty and assessed punishment at ten years and one day confinement in the Texas Department of Corrections. We affirm.

On May 3, 1984, Odell Banks died as a result of a stab wound inflicted by appellant, Brenda Stewart. The fatal incident took place outside The Cinder Club in Richmond, Texas. Testimony by Felicia Jenkins, a state witness, revealed -that the deceased, appellant and Lorene McGee, also charged with this offense, were all present at the Cinder Club on the evening of May 3, 1984.

Felicia Jenkins testified that when she arrived at the club she saw her step-sister, Lorene McGee, arguing with the deceased outside the club. Lorene had a knife which she opened and was waving at Banks during their argument. This knife belonged to the appellant who had given it to Lorene earlier in the day. Felicia further stated that she told her step-sister that it was time to go home and that the argument was not called for. Finally, Felicia was able to get her step-sister down the steps and away from Banks.

Next, the testimony reveals that the appellant began arguing with Banks. There is conflict in the testimony regarding whether appellant or Banks struck the initial blow during this heated altercation. At some point during this altercation the appellant told Lorene to hand over the knife. Further testimony by Felicia Jenkins is as follows:

“And Lorene tossed her the knife and she said, ‘This is my goddamned knife, and I'll stab you.’ And she went up there to stab him. She came down the steps saying she didn’t care if she did stab him. People was telling her that she stabbed him, and that boy was going to die. She said she didn’t care. Didn’t give a damn if he died.”

When asked if she saw a knife or any other instrument in decedent’s hands, Felicia said no.

Additional testimony by Patrice Jenkins, state’s witness, revealed that at the time of the stabbing Banks was trying to retreat, but there were several people standing behind him in the doorway and he was unable to back up. Patrice testified that she overheard the appellant bragging and shouting, “I stabbed him. I stabbed that bastard. I don’t give a damn if he die and all that.”

In the first ground of error, appellant alleges that the trial court erred in admitting into evidence over appellant’s timely objection the victim’s blood stained trousers.

It has been held that bloody clothing is admissible if it has relevance such that a verbal description thereof would be [747]*747admissible. Short v. State, 511 S.W.2d 288 (Tex.Crim.App.1974), Harrison v. State, 501 S.W.2d 668 (Tex.Crim.App.1973). In the ease at hand, there was testimony by the police officer who arrived on the scene describing the decedent and his stab wound as it appeared on the night of the murder. Additionally, a photograph of Banks was admitted into evidence. In light of the officer’s testimony and the admitted photograph, we find that the trial court did not abuse its discretion in admitting the blood stained trousers into evidence.

To further substantiate the admission of the decedent’s blood stained trousers we look to other similar holdings. In Harrison v. State, 501 S.W.2d 668, 669 (Tex.Crim.App.1973), the court stated that it could not be argued that it was not relevant for witnesses to recount the discovery of the body and the bloody clothing in the vicinity and to fully describe the same. By the same reasoning as was used to approve the use of the photographs, the clothing itself would be relevant and admissible. Such clothing would aid the jury to know the facts of the case, and it was entitled to no less. The court in Bradford v. State, 608 S.W.2d 918, 920-921 (Tex.Crim.App.1980) held that if a verbal description of the body and scene are admissible, the clothing worn by the victim of the offense, even if blood stained, is admissible into evidence, provided that it is not offered solely to inflame the minds of the jury.

We find a description of the victim’s body and clothing at the scene of the offense were admissible to throw light on the transaction and reveal its general nature. Such verbal description being admissible, the clothing worn by the deceased is likewise admissible into evidence. We overrule appellant’s first ground of error.

Appellant alleges in the second ground of error that the evidence was insufficient to support a verdict of guilt for murder. The standard for reviewing the sufficiency of evidence is whether, after reviewing the evidence in a light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801, 807 (Tex.Crim.App.1984); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981).

The evidence reveals the appellant joined in an altercation between her friend, Lorene McGee, and Banks. The presented evidence was that appellant retrieved her knife from Lorene whereupon she was heard to say “This is my goddamned knife and I’ll stab you.” The testimony established that Banks was in the process of backing away from the appellant, but was prevented from leaving by the surrounding crowd. The appellant at that point in time ran up to Banks and stabbed him one time in the chest. The appellant then turned around and ran from the scene. Immediately after the stabbing the appellant was overheard saying, “I stabbed the motherfucker. I stabbed him, I stabbed the bastard. I don’t give a damn if he dies.”

We find that the evidence clearly supports a guilty verdict as found by the jury and accordingly overrule appellant’s second ground of error.

In grounds of error three and four, appellant alleges that the trial court erred by failing to submit a jury charge on the lesser included offenses of involuntary manslaughter and criminally negligent homicide. The court in Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981) stated a two step analysis to determine whether a charge on a lesser included offense is required. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Eldred v. State, 578 S.W.2d 721 (Tex.Crim.App.1982); Bravo v. State, 627 S.W.2d 152 (Tex.Crim.App.1982). The court in Bravo v. State, supra, went further in explaining the issue by citing the court in McBrayer v. State,

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Stewart v. State, 703 S.W.2d 745, 1985 Tex. App. LEXIS 12749 (Tex. Ct. App. 1985).

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