Trahan v. State

654 S.W.2d 478, 1983 Tex. App. LEXIS 4161
CourtCourt of Appeals of Texas
DecidedMarch 17, 1983
DocketNo. 12-81-0113-CR
StatusPublished

This text of 654 S.W.2d 478 (Trahan 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
Trahan v. State, 654 S.W.2d 478, 1983 Tex. App. LEXIS 4161 (Tex. Ct. App. 1983).

Opinion

COLLEY, Justice.

Appellant was convicted of the offense of murder in a jury trial, and punishment was assessed at twenty-five (25) years confinement in the Texas Department of Corrections.

We affirm.

Leroy Justice, Jr., was a 55 year old blind man who resided at 3611 Hutchins, in the “Third Ward” area of Houston, Harris County, Texas. Living with him were Arthur Richardson and the owner of the home, H.B. Parker. Justice was in the habit of drinking alcohol on a daily basis outside the home with several friends. Appellant had participated in these drinking bouts for approximately six to eight months. Arthur Richardson testified that Justice could distinguish voices as he could not see to whom he was speaking, and referred to appellant by name, as he did with several persons, when speaking to him.

On July 6, 1978, Justice was engaged in drinking and talking with appellant, Richardson, and Elijah Hawkins outside the house. Richardson testified the only entrance used was the front entrance because the only other door, being on the side, was always locked because the trash was stacked outside that door. After drinking several hours, appellant entered the house on the pretense of using the bathroom. After about 20 to 30 minutes, Richardson entered the house and noticed appellant was asleep on one of the couches. He and Justice attempted to wake appellant, and as Richardson was leaving he heard what he believed to be Justice striking appellant with his walking cane to get him off the couch. Appellant and Justice remained alone in the house together for another 20 to 30 minutes before appellant exited the house and sat down for less than a minute before stating he had to use the bathroom again. Richardson watched appellant because the house was in his care and he didn’t want appellant to go to sleep again inside. Just after appellant re-entered the house he told Richardson, “Slim [Richardson], Lee, Jr. [Justice] is bleeding.” Richardson, Hawkins and Hawkins’ wife, who had recently arrived, ran into the house and found Justice bleeding behind the left ear with a lump on his head and cut on his chin. Justice was groaning with pain and his pockets were turned out.

Richardson asked Justice who had hit him, and Justice replied, “Clarence did it.” Justice told the other witnesses, “Clarence Trahan beat me up.” When asked why, Justice said appellant must have thought Justice had money on him. Appellant responded, “I’m Clarence, but I didn’t hit him,” and “I didn’t hit him.” Appellant then left the house while Richardson attempted to stop the bleeding. After a few [480]*480hours the ambulance was called to the home, but Justice refused to go to the hospital. His wounds were dressed, and the attendants left. About an hour after the ambulance left, Richardson took Justice to the hospital because of the continued bleeding. Justice remained hospitalized at Ben Taub Hospital until he died on August 28, 1978, approximately 43 days later.

Appellant brings six grounds of error. The first ground is that the evidence is factually insufficient to sustain the conviction “in this, a circumstantial evidence case.” The jury was charged on circumstantial evidence.

Appellant attacks the sufficiency on the grounds that Justice was blind and that he knew another person named Clarence and argues that someone could have come into the house through the other door and assaulted Justice. Both Parker and Richardson testified the side door was continually kept locked, although neither had checked the door on that day prior to the incident. The door could only be locked from the inside and was found locked, after the incident, by Parker. Richardson testified that when appellant entered the house the second time and called to him for help, that appellant could not have been far enough in the house to see Justice. Appellant was only away from Justice for less than a minute during the time the assault could have been made on Justice. There was also testimony from several witnesses about appellant’s demeanor in the house after the injury was discovered. He was described as looking away from the witnesses as Justice was accusing him of the assault/attempted robbery. Gracie Lewis, a nearby neighbor, testified she was watching the drinking from her kitchen window; that appellant entered the house followed later by Richardson and then Justice; that she then saw Richardson exit the house, and appellant come outside some time later, returning immediately back into the house; that she heard appellant crying out that Justice was injured and saw all the parties re-entering the house. She saw no one else enter or leave by the other door. The defense attorney did manage to elicit the testimony from Lewis that she had not watched continually, but she responded she was so close and had such an unobstructed view that she would notice anyone going into the side door. We conclude under the record that the evidence is sufficient to support the conviction, and we overrule appellant’s first ground of error.

Appellant contends that the trial court erred in allowing over his objection the “totally speculative testimony regarding the alleged murder weapon” by the expert witness, Dr. Ethel Erickson. Dr. Erickson, the Assistant Medical Examiner of Harris County, performed an autopsy on Justice and diagnosed that death occurred due to “bronchial pneumonia following the fractured skull.” She testified Justice was undernourished, and. weighed a little over a hundred pounds when he died. She testified both on direct and cross-examination that Justice would not have contracted the pneumonia and died if it were not for the skull fracture, which measured 2¾ inches, and brain damage, as a result of “blunt trauma,” probably caused by a blunt instrument.

Dr. Erickson was excused from the stand, and another witness, Dr. Christian, testified that a 4 X 4 board, found at the scene of the beating, contained gray hairs with characteristics similar to those obtained from Justice’s head. He testified that hairs were found in the board both in fragments which could have blown thereon, and in whole pieces with roots which were not merely blown onto the board but were imbedded therein. No blood was found on the board. It had been earlier testified by Richardson that he found the board under the T.V. set a few hours after he took Justice to the hospital; that he had not seen the board prior to the incident; and that he noticed the gray hair on it and kept the board until the detectives, later investigating the murder of Justice, investigated the scene of the incident. Dr. Erickson was recalled, and, based on a hypothetical concerning facts previously introduced about the 4X4, its having gray hairs on it and testimony that [481]*481the hairs were similar in characteristics to Justice’s, testified, “I would strongly feel that this was the instrument that caused the fractured skull.”

Appellant argues that Dr. Erickson’s opinion “was based totally on conjecture,” and insinuated that the State coached her to arrive at her conclusion. Dr. Erickson, qualified as a medical expert witness, rendered her opinion based on the facts she obtained in examining Justice during the autopsy and applying those facts to the hypothetical put to her on the stand. Although she testified on cross-examination that pneumonia could be caused by other factors which could weaken a person’s resistance to bacteria, she stated that in the case of Leroy Justice, Jr., his pneumonia was a result of the skull fracture.

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Bluebook (online)
654 S.W.2d 478, 1983 Tex. App. LEXIS 4161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trahan-v-state-texapp-1983.