Steven Michael Sherrill v. State ( 2008 )

Opinion issued October 23, 2008

Opinion issued October 23, 2008

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-07-00503-CR

 

STEVEN MICHAEL SHERRILL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1068120

MEMORANDUM OPINION

          Appellant, Steven Michael Sherrill, pleaded not guilty to the capital murder of Christine Van Osdall.  See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2005).  The jury found Sherrill guilty, and the State having not sought the death penalty, the trial court sentenced him to life imprisonment.  Sherrill contends the trial court violated his constitutional rights by submitting a disjunctive jury charge.  He further contends the evidence is legally and factually insufficient to support the verdict.  We conclude that the trial court did not err and that the evidence supports the verdict. We therefore affirm.

Background

          In the fall of 1999, Christine Van Osdall met Sherrill through a dating service.  They began dating in November 1999.  At the end of January 2000, Van Osdall expressed concerns to two of her friends that their relationship was progressing too quickly.  Van Osdall decided to break up with Sherrill but was worried because he had told her he would kill himself if she broke up with him.

          On February 3, Van Osdall consulted a social worker, Meg Scott, about ways to safely end the relationship.  Scott testified that Van Osdall was not ambivalent about wanting to end the relationship.  Scott recommended that Van Osdall write Sherrill a letter expressing her concerns.  Van Osdall took notes about what to tell Sherrill.  When she returned home that day, she showed the notes to her roommate, Mary Jo Alberto.  Van Osdall then telephoned Sherrill in Alberto’s presence and read the letter to him.  Sherrill convinced Van Osdall to go to his house to talk in person after she had finished a dinner in celebration of her mother’s birthday.  Because Alberto had a bad feeling about Van Osdall going to Sherrill’s apartment, she requested Sherrill’s phone number and address.  She also made a plan with Van Osdall that when Van Osdall returned home that night, she would turn off the kitchen light so that Alberto would know she had been home.  Van Osdall did not ask Alberto to take care of her dog, which she had always done in the past if she planned to spend the night away from home.

          Van Osdall had dinner with her family and dropped her aunt off at 9:15 P.M.  She left a voicemail for Sherrill stating that she was on her way over.  Sherrill called his supervisor at work and told him that he was working things out with his girlfriend and would not be able to work his scheduled 11:00 P.M. to 7:00 A.M. shift.  Around 2:30 A.M., Alberto awoke and realized that Van Osdall had not turned off the kitchen light as they had planned.  Alberto telephoned both Sherrill and Van Osdall, but did not receive an answer.  She left a message saying that Van Osdall’s dog was sick, in hopes that if Van Osdall checked it, she would call her back.  Later that morning, Alberto drove to Sherrill’s apartment complex and saw Sherrill’s car in the parking lot but not Van Osdall’s car.  That day, she filed a missing person’s report with the Harris County Constable.

          That same afternoon, Moises Murillo was fishing with some family members near Addicks Reservoir when he found Van Osdall’s body under a blue tarp in the woods.  They went to the police station to report it and then returned to the reservoir to help locate her body.  They were unable to find her body that night but returned the next day, at which time he lead police to her body.  Van Osdall’s body had been covered with dirt and debris, apparently in an attempt to hide it.  She wore a denim dress, and her panties were missing.  She had suffered a gunshot wound to the head.  The officers saw what appeared to be dried semen on her thigh, although this was not preserved for later testing.  Ligature marks appeared on her right hand and wrist, and fishing line was tied to her left wrist.  Using a metal detector, Sergeant Davila located a fired 9mm bullet near her body.

          Van Osdall’s roommate, Alberto, identified Van Osdall and informed the detectives about Van Osdall’s plans on the night she disappeared.  Sergeants Binford and Allen went to Sherrill’s apartment on Sunday evening to interview him.  The sergeants testified that when they arrived, Sherrill acted agitated and irritated, failed to keep eye contact, and crossed his arms.  He did not ask any questions about what had happened when they told him that Van Osdall was dead.  Sherrill consented to a search of his apartment.  Allen found small amounts of leaves and twigs in Sherrill’s apartment and collected them.  Sherrill accompanied the officers to the police station where he gave written consent for hair and saliva samples and fingernail clippings.  The detectives noted that Sherrill’s fingernails were dirty, which they felt was significant since there had been an attempt to cover Van Osdall’s body with dirt and debris.  Before the detectives could collect fingernail scrapings from Sherrill, he stated that he was tired and ready to return home.  When they returned to Sherrill’s apartment, he allowed the detectives to listen to his voicemail, which contained a message from Van Osdall stating she was on her way to his apartment, as well as a message from Alberto stating the Van Osdall’s dog was sick.  Sherrill agreed to meet the detectives the following day before they left.

          The next morning, when the detectives arrived at Sherrill’s apartment, he was not there.  Sherrill had briefly visited his brother early that morning and had withdrawn $1400 from his bank account.  The police did not learn of Sherrill’s whereabouts again until 2005, when they discovered that he was back in Houston.  During his more than five-year absence, Sherrill wrote letters to his daughter, in which he told her not to let anyone know she was talking to him, to use a different email address, and to be careful when talking on the telephone.  Sherrill also asked his brother to find out whether any warrants had been issued for his arrest. Detectives later learned that Sherrill had moved to Las Vegas and then met a woman on the internet who lived in Montana.  He moved in with her in Helena, Montana, giving her a false name and background.

          The detectives continued investigating Van Osdall’s murder during Sherrill’s absence.  On March 20, 2000, police located Van Osdall’s car in an apartment complex parking lot near the Greenspoint area.  The car had been driven with a key since the steering column was still intact.  One witness stated that he had seen a young, black male driving the car but the police were unable to locate who that person might have been.  Sherrill’s thumbprint matched a fingerprint investigators found on the passenger seat belt.

          In April 2000, after Sherrill’s apartment complex had left several notices to vacate on Sherrill’s door, Sergeant Allen returned to Sherrill’s apartment and searched it.  Sherrill had abandoned the apartment, leaving clothes and furniture.  Allen found a pair of white panties in Sherrill’s drawers.  The DNA on these panties later matched Van Osdall’s DNA.  Allen also found some blood in Sherrill’s sink which was later determined to be Sherrill’s blood.

          During their investigation, the detectives interviewed Richard Holley, who previously worked with Sherrill.  Holley testified that he had sold Sherrill a Lorcin 9mm handgun in 1998.  Ballistics tests determined that the bullet that killed Van Osdall had been fired from one of four types of guns, including a Lorcin semi-automatic.

          Without any further leads, the investigation halted until 2005 when Sergeant Mehl, who was part of the cold case squad, re-opened the case.  Mehl located the physical evidence from the case and realized that much of it had not been tested.  Mehl sent a pubic hair that had been found on Van Osdall’s sock for DNA testing.  DNA analysis determined that Sherrill’s mitochondrial DNA matched that of the hair, but the hair could not be positively identified as Sherrill’s, because anyone in his maternal line would have matched it.  Mehl testified that in his opinion, the hair was deposited on her sock at the crime scene because he did not think it would have remained on her sock for the walk through the vegetation to the crime scene.  Mehl also had Van Osdall’s dress tested for the presence of semen.  He believed that the dress may have rubbed the semen off her leg that investigators had seen at the scene.  Two DNA profiles were found on the dress: the epithelial sample matched Van Osdall’s DNA and the sperm fraction matched Sherrill’s DNA.

          Mehl also contacted Dr. Larry Brown of the Spring Branch Science Center Herbarium to examine the leaf Sergeant Allen had collected from Sherrill’s bedroom floor.  Brown testified that the leaf was from a cedar elm tree, which is a tree found in areas prone to flooding.  Mehl took Brown to the crime scene in Addicks Reservoir, where he found a cedar elm tree about twenty feet where Van Osdall’s body had been. Mehl also took Brown to Sherrill’s apartment complex to see if any similar trees were located there.  Brown testified that no cedar elms were planted in or around Sherrill’s apartment.  He reasoned that this was because cedar elms are not generally used for domestic landscaping.  Mehl arrested Sherrill in 2005.  Sherrill did not present any evidence at trial.

Sufficiency of the Evidence

          In his fifth and sixth issues, Sherrill contends that the evidence is legally and factually insufficient to support a finding that he caused the death of Van Osdall.  We note that Sherrill does not challenge the sufficiency of the evidence to support the finding that the murder occurred while in the course of committing or attempting to commit kidnapping or sexual assault.

Standard of Review

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  The standard is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). 

When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson, 204 S.W.3d at 417.  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, some objective basis in the record must demonstrate that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Id. 

Capital Murder

A person commits capital murder “if the person commits murder as defined under Section 19.02(b)(1) and the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat.”  Tex. Penal Code Ann. § 19.03(a)(2).  Murder is defined as “intentionally or knowingly caus[ing] the death of an individual.  Id. §19.03(b)(1).

Sufficiency of the evidence

          In reviewing the sufficiency of the evidence, we examine “events occurring before, during and after the commission of the offense.”   Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).  “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are [sic] sufficient to support the conviction.” Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). 

The last place Van Osdall appeared alive was Sherrill’s apartment.  Sherrill admitted to detectives that he had seen her that night.  The State presented testimony from numerous sources that Van Osdall intended to end her relationship with Sherrill on the night she died, thus establishing his motive for murdering her.  Id. at 50.  (“Motive is a significant circumstance indicating guilt.”).  Sherrill contends that Van Osdall ending their relationship is not motive because “it is no more specific to appellant than to any person ending a relationship.”  The State, however, also presented testimony that Sherrill was possessive of Van Osdall and had threatened to kill himself if she ended the relationship. 

The State also presented evidence that Sherrill had purchased one of the four types of guns that fires the type of bullet that killed Van Osdall.  The detectives found a leaf in Sherrill’s bedroom from the type of tree located near Van Osdall’s body—a tree that is not located in or around Sherrill’s apartment complex.  Van Osdall was not wearing panties when police discovered her body, and the detectives found a pair of Van Osdall’s panties in Sherrill’s apartment.  Furthermore, Sherrill’s DNA matched the sperm that detectives found on the dress Van Osdall wore when her body was found in the forest, and his DNA is consistent with the pubic hair found on Van Osdall’s sock.  Detectives also found Sherrill’s fingerprint in Van Osdall’s car.  Sherrill contends that this evidence could have been left before the murder, and he emphasizes that the model of his gun is common.  He asserts that he and Van Osdall had consensual sex when she visited him at his apartment, which explains his DNA on her body.  Contrary to that assertion, the State presented testimony that Van Osdall’s arms had been tied with fishing line and that she was very determined to end her relationship when she went to Sherrill’s apartment that night.  Furthermore, Detective Mehl testified that he did not believe the pubic hair that the investigators found would have remained on Van Osdall’s sock through a walk in the woods, if she had indeed had sexual intercourse before walking out there. 

The State presented additional evidence that Sherrill left Texas soon after speaking with detectives.  He told his daughter to be careful not to tell anyone that he was emailing her.  He used an alias when living with a woman in Montana.  In addition, he called his brother to check whether police had issued any warrants for his arrest.  The jury reasonably could have inferred that Sherrill fled the State because he was guilty.  See Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) (holding that fact that appellant provided police officer with false identification indicates “consciousness of guilt”); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) (“Evidence of flight is admissible as a circumstance from which an inference of guilt may be drawn.”); Robinson v. State, 236 S.W.3d 260, 268 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (holding that flight and use of fake name shows consciousness of guilt). 

We defer to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781. 2788–89 (1979)).  “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.”  Id.  Viewing the evidence in a light favorable to the jury’s verdict, we hold that legally sufficient evidence supports the jury’s verdict.  Although Sherrill offers alternative explanations for the evidence that the State presented, the jury is ultimately responsible for weighing the evidence and drawing reasonable inferences from that evidence.  Considering the totality of the evidence—motive, the DNA evidence, the leaf in Sherrill’s apartment, Van Osdall’s panties in his apartment, and Sherrill’s flight from Texas—we hold that, when viewed neutrally, the jury’s verdict is not against the great weight and preponderance of the evidence.  We therefore conclude that the evidence is legally and factually sufficient to support the verdict.

Jury Charge

In his first three issues, Sherrill contends that his Fourteenth Amendment right of due process and his Sixth Amendment right of trial by jury were violated because the trial court’s charge did not require the jury to unanimously agree whether the offense elevating murder to capital murder was kidnapping or sexual assault.[1] In his fourth issue, Sherrill contends that he was egregiously harmed by this error.

Standard of Review

Texas requires unanimous verdicts in all felony cases.  See Tex. Const. art. V, § 13; Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App. 2007); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). Appellate review of jury charge error involves a two-step process.  Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994).  Initially, we must determine whether error occurred.  If so, we must then evaluate whether sufficient harm resulted from the error to require reversal.  Id. at 731–32.  When, as here, an appellant did not object to the charge at trial, he is entitled to reversal only if he can show egregious harm.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

Analysis

Sherrill contends that his constitutional rights were violated because the jury was not required to unanimously agree on which aggravating offense (i.e., kidnapping or aggravated sexual assault) elevated his crime to capital murder.  The thrust of Sherrill’s argument is that the aggravating offenses enumerated in section 19.03(a)(2) are separate elements of the offense of capital murder, not merely alternate means of committing capital murder.  As such, Sherrill contends, the jury should not have been permitted to find him guilty of capital murder without agreeing unanimously on at least one particular offense enumerated in section 19.03(a)(2).

The indictment charged Sherrill with capital murder, which is defined in relevant part as “intentionally commit[ting] . . . murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat.”  Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2005).  The indictment alleged:

STEVEN MICHAEL SHERRILL . . . on or about February 4, 2000, did then and there unlawfully, while in the course of committing and attempting to commit the KIDNAPPING of CHRISTINE VAN OSDALL, intentionally cause the death of CHRISTINE VAN OSDALL by SHOOTING CHRISTINE VAN OSDALL WITH A DEADLY WEAPON, NAMELY A FIREARM.

It is further presented that . . . STEVEN MICHAEL SHERRILL . . . on or about February 4, 2000, did then and there unlawfully, while in the course of committing and attempting to commit the AGGRAVATED SEXUAL ASSAULT of CHRISTINE VAN OSDALL, intentionally cause the death of CHRISTINE VAN OSDALL by SHOOTING CHRISTINE VAN OSDALL WITH  A DEADLY WEAPON, NAMELY A FIREARM.

The trial court instructed the jury: “If you find from the evidence . . . the defendant, Steven Michael Sherrill, did then and there unlawfully, while in the course of committing or attempting to commit the kidnapping of Christine Van Osdall, intentionally cause [her] death . . . or if you find from the evidence that . . . Steven Michael Sherrill, did then and there unlawfully, while in the course of committing or attempting to commit the aggravated sexual assault of Christine Van Osdall, intentionally cause [her] death . . . then you will find the defendant guilty of capital murder.”

In reviewing a disjunctive jury charge, we first determine whether the separate application paragraphs contain different criminal acts or whether they merely instruct as to different means of committing a single offense.  If the disjunctive paragraphs contain different criminal acts, then the jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts.  Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).  If the disjunctive paragraphs merely inform of different means of committing a single offense, then the jury does not have to unanimously agree on which alternative means the defendant used to commit the offense.  Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991).  In determining whether the paragraphs are separate criminal acts or separate means of committing one act, “[a] handy, though not definitive, rule of thumb is to look to the statutory verb defining the criminal act.”  Ngo, 175 S.W.3d at 745 n. 24.

This case is similar to Kitchens, in which the jury charge presented two alternative theories of capital murder—one in the course of aggravated assault and the other in the course of robbery.  Kitchens, 823 S.W.2d 256.  The Texas Court of Criminal Appeals held that if alternative theories of the same offense are submitted to the jury in the disjunctive, then the jury may return a general verdict if the evidence supports a finding under any of the theories submitted.  Id. at 258.  No general requirement exists that the jury reach agreement on the preliminary factual issues that underlie the verdict.  Id. at 258.  Likewise, in Schad v. Arizona, the United States Supreme Court concluded that it is not unconstitutional to instruct a federal jury that it could find a defendant guilty of felony murder or premeditated murder within a single guilty verdict form. Schad v. Arizona, 501 U.S. 624, 642–44, 111 S. Ct. 2491, 2502–03 (1991).

Sherrill contends that the holding in Kitchens has been eroded by Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005), and by Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707 (1999).  In Ngo, the court held that because the defendant was charged with three different types of credit card abuse, the jury had to unanimously agree that the defendant committed at least one of three different acts: he had to have stolen the credit card, knowingly received the stolen credit card, or fraudulently presented the stolen credit card with intent to obtain a benefit. Ngo, 175 S.W.3d at 744.  In Richardson, the Supreme Court held that the federal continuing criminal enterprise statute requires jurors to agree unanimously upon which acts—or drug sales—the defendant committed.  In so holding, the Court confirmed that a jury in a robbery case does not have to agree on the underlying facts, such as whether the defendant used a knife or a gun to create a threat, as long as it agrees that the defendant threatened to use force.  Id. at 817, 119 S. Ct. at 1711.  Unlike Ngo and Richardson, which both potentially involve more than one offense, the disjunctive paragraphs in this case, as in Kitchens and Schad, concern only one actus reus—the murder of Van Osdall.  The Ngo decision, therefore, does not erode the holding of Kitchens in cases in which the defendant is charged with the specific offense of capital murder.

To obtain a capital murder conviction against Sherrill, the State was required to prove beyond a reasonable doubt that he intentionally caused Van Osdall’s death while in the course of kidnapping or attempting to kidnap Van Osdall or while in the course of committing or attempting to commit the aggravated sexual assault of Van Osdall.  See Tex. Penal Code Ann. §  19.03(a)(2). We follow the Court of Criminal Appeals’ holding in Kitchens and hold that these are alternative means of committing the capital murder that the State alleged in the indictment, and thus, the jury could convict appellant under either theory.  Guevara v. State, 152 S.W.3d 45, 52 (Tex. Crim. App. 2004) (citing Kitchens, 823 S.W.2d at 258) (“[W]hen multiple theories are submitted to the jury, the evidence is sufficient to support a conviction so long as the evidence is sufficient to support conviction for one of the theories submitted to the jury.”); see also Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (“Because appellant’s indictment did not allege different offenses but only alleged different ways of committing the same offense, the court properly furnished the jury with a general verdict form.”); Holford v. State, 177 S.W.3d 454, 463 (Tex. App.—Houston [1st Dist.] 2005, pet ref’d) (holding that trial court did not err in failing to instruct jury that it must agree unanimously on manner of complainant’s murder when its instructions required jury to agree on single act of capital murder).  

Sherrill also relies on the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), to support his contention that his right to a jury trial was violated when the jury did not unanimously decide which aggravating factor Sherrill committed.  This case is distinguishable from Apprendi and Ring because in those cases, the trial court, instead of the jury, found specific aggravating factors which the Supreme Court determined should have been decided by the jury.  In this case, however, the jury, not the trial court, determined that Sherrill committed murder while committing kidnapping or aggravated sexual assault.  Sherrill thus received a jury trial on the aggravating factor that elevated murder to capital murder.

We hold that the trial court did not err in submitting a disjunctive jury charge with a general verdict for the single offense of capital murder, and therefore, Sherrill’s conviction does not violate his right to due process, due course of law, or to a jury trial.[2]

Conclusion

We hold that the trial court did not err in submitting a disjunctive jury charge.  We further hold that the evidence is legally and factually sufficient to support the verdict.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish.  Tex. R. App. P. 47.4.

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[1]Although Sherrill’s first claim is predicated on both the Fourteenth Amendment and the Sixth Amendment, the right of juror unanimity “is more accurately characterized as a due process right than as one under the Sixth Amendment.” Manns v. Quarterman, 236 Fed. App’x 908, 913 (5th Cir. 2007), citing Schad v. Arizona, 501 U.S. 624, 634 n.5, 111 S. Ct. 2491 (1991) (plurality opinion)).

[2] Having held that no jury charge error exists, we do not reach Sherrill’s fourth issue that he was egregiously harmed.