Jay Thayer Williams v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00290-CR
JAY THAYER WILLIAMS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Jay Thayer Williams of capital murder, and the
trial court sentenced him to life imprisonment. Appellant brings three points on
appeal, challenging the sufficiency of the evidence and contending that the trial
court abused its discretion by admitting testimony and exhibits regarding his
known fingerprints seized in 1983 and by allowing testimony comparing the
1
See Tex. R. App. P. 47.4.
known fingerprints to latent fingerprints collected at the crime scene. Because
the trial court committed no reversible error and because the evidence is
sufficient to support the jury’s verdict, we affirm the trial court’s judgment.
Statement of Facts
Charles and Sandra Martin lived in Fort Worth with their two children. In
September 1986, they put their house up for sale, advertising it by way of a “For
Sale” sign placed in their front yard. On September 22, 1986, Charles called
home to speak to his wife. His five-year-old son answered the phone and told his
father that Sandra was in the “other room and the door [was] locked.” A few
minutes later, Charles called home again. His son again answered the phone
and stated that Sandra was in the “other room and the door [was] locked,” and,
when questioned by his father whether anyone had been to the house, added
that a man had come to look at the house.
Charles left work and went home, where he found the bedroom door
closed and locked. Charles knocked on the door and then broke the door open.
Inside, he found Sandra dead on the floor beside the bed with duct tape around
her head. Her hands were bound together with duct tape; her ankles were also
bound with duct tape but were not bound together. Her skirt was pulled up, and
her underwear was pulled down around her right ankle. Charles pulled some of
the duct tape away from Sandra’s nose and called the police.
The police found a pillow with a bullet hole in it next to Sandra’s body. The
autopsy found that Sandra had died from acute cerebral laceration and
2
intracranial hemorrhage caused by a gunshot wound to the head. Bruising on
her thyroid and hemorrhaging within the strap muscles of her neck indicated that
before being shot, Sandra had been strangled.
Crime scene officer Jim Varnon of the Fort Worth Police Department
(FWPD) removed the duct tape from Sandra’s body and was eventually able to
separate the layers of tape to recover prints from parts of the tape that had been
covered by other layers. Over the years, the fingerprints were submitted to the
Texas Department of Public Safety’s (TDPS’s) Automatic Fingerprint
Identification System (AFIS) six separate times but yielded no positive results.
In 2009, Detective Jose Hernandez of the FWPD’s cold case unit began
reviewing the Martin case. He again submitted the fingerprints to AFIS, as well
as to the FBI’s fingerprint database. No matches were found.
Hernandez then decided to physically take the prints to TDPS’s latent print
section in Austin. About three weeks later, that lab gave him Appellant’s name
and other information that prompted him to make contact with the Temple Police
Department. The record does not indicate exactly what information Hernandez
received or exactly from whom he received it because the trial court sustained
Appellant’s hearsay objection when Hernandez seemed about to testify on that
subject.
Hernandez traveled to Temple, where he met with that police department’s
records custodian Skip Carmouche. From Carmouche, Hernandez obtained a
fingerprint card containing Appellant’s fingerprints, collected in connection with
3
his 1983 arrest in Temple for driving with a suspended license. Hernandez then
drove back to Fort Worth and submitted the Temple fingerprint card to the FWPD
crime lab’s latent print examiner. Results from the crime lab led Hernandez to
obtain a warrant for Appellant’s arrest for Sandra’s murder.
Before trial, the State moved to retake Appellant’s fingerprints because the
police officer who had originally taken his prints upon his arrest for Sandra’s
murder was no longer employed by FWPD. To avoid having to call the former
employee as a witness at trial to testify about the fingerprints, the State wanted to
retake Appellant’s prints so that a current FWPD employee could testify about
them. Appellant objected under the Fourth Amendment to the U.S. Constitution
and article one, section nine of the Texas Constitution. The trial court allowed
the fingerprinting but granted Appellant a running objection at trial to the use of
them.
At trial, Appellant objected when the State moved to admit the Temple
fingerprint card. Appellant objected on relevance grounds and further argued
that the fingerprints were taken when he was under arrest, in violation of the
Fourth Amendment to the U.S. Constitution and article one, section nine of the
Texas Constitution, and that the State was attempting to introduce evidence in
violation of article 38.23 of the code of criminal procedure.
The trial court initially sustained Appellant’s Fourth Amendment objection
after a hearing, but after a later hearing, the trial court overruled Appellant’s
objections. The trial court granted Appellant a running objection to the evidence.
4
When the State later offered the Temple fingerprint card during
Hernandez’s testimony, Appellant objected that the fingerprint card was hearsay
and that it violated his Sixth Amendment right to confrontation because he did not
have the opportunity to confront and cross-examine the person who obtained the
prints. He also reasserted his Fourth Amendment and article one, section nine
objections. The trial court conditionally admitted the fingerprint card but on the
next day admitted the fingerprint card for all purposes, stating that Appellant’s
prior objections were reconsidered, still overruled, and running.
James Freed, a fingerprint analyst with the FWPD, testified that six
fingerprints taken from the duct tape matched those on the fingerprint card from
Temple. He then testified about State’s Exhibits 68–73, each of which, he
testified, had an enlarged photo of one of the prints from the fingerprint card and
of one of the prints from the duct tape.
Appellant recalled Freed in his defense. During his testimony, Freed
stated that his earlier testimony regarding State’s Exhibit 73 was incorrect, in that
the left thumbprint he had matched to the duct tape was actually not from the
Temple fingerprint card. In a hearing outside the presence of the jury, the State
produced DPS records of a 1981 Dallas arrest of Appellant. Freed stated that he
had used a print taken at the time of this Dallas arrest for State’s Exhibit 73, not
the Temple fingerprint card.
Appellant moved to strike, stating, “I move that that would be removed
from evidence, Your Honor, be stricken from the record and the jury admonished
5
not to consider that which was offered and introduced from—by Mr. Freed as a
Temple print when, in fact, it’s not.” The State offered to strike the exhibit and to
strike the testimony regarding “the print appearing under the title ‘Left Thumb
[Appellant].’” The following exchange then occurred:
THE COURT: All right. Then the hearing is over. Defense motion
granted.
[Defense Counsel]: [The prosecutor] moved to—he moved to strike
the testimony about it. I don’t want to strike the testimony. I just
want you to instruct the jury not to consider it. Take it out and tell
them not to consider it.
THE COURT: Take out that exhibit and any testimony concerning
that exhibit. Am I understanding correctly?
[Defense Counsel]: No, just the exhibit. I would like to be able to
harp on the fact that he continually professed perfection and that—
THE COURT: I got you. I see what you’re saying. And I was
thinking specifically of testimony as to a specific comparison. But if
you’re moving to strike the—
[Defense Counsel]: Let me withdraw my motion to strike it.
THE COURT: Okay.
On questioning by the State in front of the jury, Freed acknowledged that
the left comparison thumbprint was not taken from the Temple fingerprint card
but stated that it was Appellant’s left thumbprint, just taken from a different
sample. Appellant did not timely object to this testimony.
The jury found Appellant guilty and assessed punishment of life
imprisonment. The trial court sentenced him accordingly.
6
Sufficiency of the Evidence
In his third point, Appellant challenges the sufficiency of the evidence to
support his conviction. In our due-process review of the sufficiency of the
evidence to support a conviction, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. 2 This
standard gives full play to the responsibility of the trier of fact to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. 3
The trier of fact is the sole judge of the weight and credibility of the
evidence. 4 Thus, when performing an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. 5 Instead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence
2
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise
v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
3
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011).
4
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364
S.W.3d at 903.
5
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
7
when viewed in the light most favorable to the verdict. 6 We must presume that
the factfinder resolved any conflicting inferences in favor of the verdict and defer
to that resolution. 7
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. 8
Appellant argues that the evidence is insufficient to support the jury’s
verdict that he is guilty of intentionally causing Sandra’s death by shooting her
with a deadly weapon, to wit: a firearm, in the course of committing or attempting
to commit aggravated sexual assault of her. Specifically, Appellant challenges
the evidence that he was in the course of committing or attempting to commit
aggravated sexual assault. He argues that the only evidence that he was in the
course of committing or attempting to commit the offense of aggravated sexual
assault of Sandra was the fact that she was discovered with her panties around
her ankle. There was no evidence of trauma to her genital area, nor evidence of
third-party DNA. Appellant points out that the crime scene officer, Varnon,
testified that he saw no indication of a completed sexual assault. Hernandez
6
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).
7
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.
8
Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).
8
testified that there was no forensic evidence to support the theory that Sandra
had been sexually assaulted at the time of her death. Nor was there evidence of
a struggle, either from an examination of the undisturbed bed or from the Martins’
five-year-old son’s testimony that he heard no noise coming from the bedroom.
Appellant argues that, although the evidence may provide a strong suspicion that
the assailant possessed sexual intent, there is no evidence proving an attempted
penetration of Sandra’s female sexual organ, mouth, or anus.
The State points to the testimony of Dr. Marc Krause, the deputy medical
examiner who performed the autopsy on Sandra’s body. When asked about the
lack of physical evidence of sexual assault at trial, he testified that, although he
did not find evidence of genital trauma, in his opinion the evidence did not
exclude the possibility of sexual assault. The State also points out that although
Appellant argues that there is no evidence of attempted penetration or evidence
that his acts amounted to more than mere preparation that tended, but failed, to
effect commission of the intended offense, “Appellant’s argument ignores
methods other than penile penetration by which sexual assault may occur . . . . ”
Neither the law nor any allegation in the indictment requires proof of a
completed sexual assault. The State was required to prove only that Appellant
intentionally caused Sandra’s death in the course of committing or in the course
of attempting to commit the offense of sexual assault. That is, the State was
required only to prove that Appellant intentionally caused Sandra’s death in the
course of doing an action that amounted to more than mere preparation that
9
tended but failed to effect the commission of the sexual assault. 9 Sexual assault
may occur by any genital or anal penetration or by causing the genitals of the
assailant to penetrate the mouth of the complainant or by causing the genitals of
the complainant to penetrate the mouth of the assailant. 10
Appellant was in a locked room with Sandra for an extended period of
time. She was found lying on the floor of her bedroom, next to her bed. Her skirt
was pulled up to her hips; her panties were pulled down around her right ankle.
Duct tape bound her wrists and each ankle, but the ankles were not bound
together. Her head was wrapped in duct tape that covered her eyes, nose, and
mouth. A piece of duct tape was also found attached to one of the bedposts.
Although Sandra’s purse and credit card had been taken, her Rolex watch, gold
necklace, gold bracelet, and gold earrings were still on her body. Various police
officers testified that the crime scene they viewed suggested sexual assault to
them. Further, the fact that expensive jewelry was left on the body appeared to
rule out robbery as a motive. Additionally, a motive need not be exclusive. 11 The
9
See Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981).
10
Tex. Penal Code Ann. § 22.011(a)(1)(A–C) (West 2011).
11
See Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992)
(holding that even if jury believed that defendant killed the complainant because
the complainant looked at him with desire, the jury could also believe that
defendant killed the complainant in the course of committing robbery), cert.
denied, 510 U.S. 830 (1993).
10
fact that something may have been stolen does not rule out murder in the course
of attempting or committing a sexual assault.
As the Texas Court of Criminal Appeals explained in Swearingen v. State,
Based on the circumstantial evidence in the multitude of possible
scenarios suggested by the physical evidence, a rational jury could
have entertained reasonable doubt regarding [Appellant’s] guilt. The
question, however, is whether a rational jury would have necessarily
entertained a reasonable doubt regarding the aggravating elements
of the offense. 12
Following the Swearingen court, 13 we hold that the evidence is not so
obviously weak that a rational jury would necessarily have entertained a
reasonable doubt that Appellant intended to sexually assault the complainant and
that he attempted to do so. We overrule Appellant’s third point.
Admissibility of Fingerprint Exhibits and Testimony
In his first and second points, Appellant argues that the trial court abused
its discretion by admitting testimony and exhibits regarding his known fingerprints
on the Temple fingerprint card and by admitting testimony comparing his known
fingerprints to latent fingerprints collected at the scene of Sandra’s murder.
The State argues that Appellant failed to preserve his first and second
points by withdrawing his motion to strike State’s Exhibit 73 and the erroneous
testimony regarding the origin of Appellant’s known left thumbprint on that
12
101 S.W.3d 89, 96 (Tex. Crim. App. 2003).
13
See id.
11
exhibit. While Appellant did withdraw his motion to strike the exhibit, his
discussions with the trial court in the voir dire hearing indicate that he never
moved to strike the testimony; defense counsel wanted the jury to hear it and he
wanted to “harp on the fact that [Freed] continually professed perfection.” It was
the prosecutor who had moved to strike the testimony.
Nevertheless, after the voir dire hearing, the prosecutor established on
cross-examination before the jury that Freed had matched Appellant’s known left
thumbprint from a different sample than the Temple fingerprint card to a latent left
thumbprint found at the murder scene. Appellant did not timely object to this
testimony. The erroneous admission of evidence will not require reversal when
other such evidence is admitted without objection. 14 Accordingly, we agree with
the State in part. That is, we agree that Appellant failed to preserve a complaint
regarding evidence of his left thumbprint.
Regarding Appellant’s remaining challenges to the fingerprint evidence, we
believe that he sufficiently communicated his confrontation objection to the trial
court regarding both the physical fingerprint evidence and Freed’s testimony
about it and that he received an unfavorable ruling. We will therefore address
Appellant’s remaining challenges on their merits.
14
Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v.
State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
12
Appellant argues that testimony regarding the known prints by a person
who did not take the prints is a denial of his Sixth Amendment right to
confrontation. 15 We disagree. The right of confrontation applies only to
testimonial statements. 16 A statement is testimonial when made “under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.” 17 The taking of
fingerprints is not the same as scientific testing. It is more similar to taking a
photograph, handwriting, drawing a picture, or recording a voice exemplar. That
is, a fingerprint card is not testimonial unless it contains testimonial notations. 18
The Texas Court of Criminal Appeals has stated that certain things, such
as a person’s voice, appearance, and fingerprints, are not testimonial. Neither is
there any expectation of privacy in voice or features or handwriting that a person
routinely presents to the public. Specifically, the Texas Court of Criminal
Appeals has explained,
In Olson v. State, this Court held that compelling a handwriting sample
from a defendant does not constitute compelling an accused to “give
evidence against himself” in violation of the Texas Constitutional provision
15
See U.S. Const. amend. VI.
16
Crawford v. Washington, 541 U.S. 36, 51–52, 124 S. Ct. 1354, 1364
(2004).
17
Id.
18
See United States v. Wade, 388 U.S. 218, 223, 87 S. Ct. 1926, 1930
(1967); Schmerber v. California, 384 U.S. 757, 764, 86 S. Ct. 1826, 1832 (1966).
13
on self-incrimination. The Court further held that compelling a blood test, if
taken under conditions which comport with due process, likewise does not
violate the state privilege against self-incrimination. This Court reasoned
that such tests are non-testimonial in nature and thus the self-incrimination
privilege is not implicated under such circumstances. The Court in Olson
further noted that many types of physical evidence are compellable from
an accused consistent with both the Fifth Amendment of the United States
Constitution and Art. I, Sec. 10, of the Texas Constitution. A partial list of
these types of physical evidence include fingerprints, examination of the
tongue, fingernail scrapings, footprints, requiring the accused to stand in a
lineup, requiring the accused to raise his hand before the jury, a paraffin
test, [and] requiring the accused to put on clothes and speak before the
jury. 19
Fingerprints are not testimonial when they are given by a defendant, 20 nor
are they testimonial when they exist on a card and are presented before a jury. If
the fingerprint card is shown to be sufficiently reliable and adequately connected
to the person in question, the fingerprint card, absent testimonial notations, is still
nontestimonial. We therefore hold that the trial court did not abuse its discretion
by admitting testimony and exhibits regarding the known fingerprints provided by
Appellant in 1983, nor did the trial court abuse its discretion by admitting
testimony comparing Appellant’s known fingerprints to the latent fingerprints
collected at the crime scene. We overrule Appellant’s first and second points.
19
Bell v. State, 582 S.W.2d 800, 806–07 (Tex. Crim. App. 1979) (emphasis
added; citations omitted), cert. denied, 453 U.S. 913 (1981).
20
See Miffleton v. State, 777 S.W.2d 76, 79–80 (Tex. Crim. App. 1989).
14
Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 5, 2013
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