Roger Evan Garrett v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ROGER EVAN GARRETT, No. 08-13-00323-CR
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Appellant, Appeal from
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v. 168th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20130D01613)
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OPINION
Roger Evan Garrett appeals his conviction of murder. A jury found Appellant guilty and
assessed his punishment at a $5,000 fine and imprisonment for a term of forty years. For the
reasons that follow, we affirm.
FACTUAL SUMMARY
In January of 1977, Lisbeth Garrett (Lisbeth) lived in El Paso with her two sons,
eighteen-year-old Roger Garrett (Appellant), and twelve-year-old Patrick Garrett (Patrick).
Lisbeth and her husband, Major Chester Garrett, were divorcing and Lisbeth had learned that
Chester was in a relationship with another woman. Chester was living at the Bachelor Officers
Quarters (BOQ) on Fort Bliss. He was a large, athletic man in superb physical condition and he
held a black belt in karate. On the evening of January 3, 1977, Lisbeth asked Patrick if he
wanted to go see a movie. Patrick thought this was unusual because it was a school night and he
normally had to be in bed by 8:30 or 9:00. Lisbeth drove Patrick and a friend, Buddy Larson, to
the theater, but she did not return to pick them up when the movie ended at 9:30. They called
Larson’s mother who picked them up and dropped off Patrick at his home. The house was
completely dark and Patrick was unable to get in the house because he did not have a key and no
one came to the door. He walked down the street to the Larsons’ house to use the telephone to
call home, but no one answered. Patrick remained at Larson’s house until he saw the porch light
on at his house. When he arrived home, Appellant opened the door and Patrick noticed that the
house was completely dark except for the porch light. Appellant “corralled” Patrick into his
bedroom and told him to go to bed because it was a school night. The next morning when
Patrick woke up, Appellant was standing in his bedroom with a bowl of cereal which he made
Patrick eat in his bedroom. Even though Patrick normally showered before going to school,
Appellant made him go to school without a shower. Appellant picked up Patrick from school
that afternoon and told him that there had been an accident and their father was dead. On the
morning of January 4, 1977, Chester’s body was found in the backseat of his red Volkswagen.
The vehicle was parked off of Loop 375 on the east side of El Paso. Chester had died as the
result of blunt force trauma to the head and multiple stab wounds to the body. Dr. Juan Contin,
the chief medical examiner for El Paso County, testified that Chester had suffered two blows to
the back of the skull and two blows to the front which caused multiple contusions to the brain.
Chester also had seven stab wounds to the chest and flank. In Dr. Contin’s opinion, the stab
wounds to the chest and the head injuries were fatal. At around 3 p.m. that same day, Glenn
Hall, who was the corporal commander of the student battalion at the Air Defense School at Fort
Bliss, went to the Garrett home to notify the family. Lisbeth and Appellant were present and
Hall noticed that they were wearing matching bathrobes which he found strange. Hall
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characterized their reaction to the news of Chester’s death as “fairly stoic.” He was aware that
Chester and Lisbeth had a bitter relationship at the time and he immediately assumed that she
was “a very likely suspect” in Chester’s murder.
On the evening of January 4, 1977, Deputy Jesus Reyes and other investigators went to
Chester’s quarters at the BOQ. The lights were on, nothing had been disturbed, and the quarters
appeared to be just as Chester had left it. Reyes noted that there was a half-eaten sandwich and
half a can of Mountain Dew soda on Chester’s desk. That same evening, Reyes also attempted
to process the Garrett home for evidence but Lisbeth was uncooperative and did not consent to a
search of the home. About a week after Chester died, Appellant made Patrick help him clean out
the garage. They used muriatic acid to clean stains off of the left side of the garage floor and
Appellant washed the residue out of the garage with a hose.
On January 13, 1977, Lisbeth finally consented to a search of the home. Reyes observed
a large chalky stain on the driveway coming underneath the garage door and from inside of the
garage. It appeared as though something had been washed out of the garage. Inside of the
garage, Reyes found a bottle of muriatic acid and the left side of the garage appeared to have
been recently cleaned because it was still wet. Reyes also saw what appeared to be blood spatter
on the garage wall.
Appellant testified before the grand jury on January 13, 1977 and admitted he had seen
Chester at the Garrett home on the evening of January 3, 1977. Patrick was not there because
they had dropped him off at the theatre. Chester spoke privately with Lisbeth while Appellant
shot the basketball outside. According to Appellant, Chester and Lisbeth walked out of the
house and Chester drove away in his car that evening. Appellant and Lisbeth were aware that
Chester was dating Jennifer Molina but denied that Chester and Lisbeth were not getting along
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during the divorce. To the contrary, Appellant insisted that his mother had accepted the
situation. The grand jury no-billed Appellant on January 13 or January 14, 1977 and Chester’s
death became a cold case.1 Law enforcement did not discover for many years that Appellant
subsequently confessed to friends and family members that he and Lisbeth had murdered
Chester.
Appellant’s 1978 Confession to Debra Rodriguez
Debra Rodriguez met Appellant in the summer of 1978 when she was in her sophomore
year of high school and they became friends. Appellant wanted to date Rodriguez but she was
not interested in him. In late October or early November 1978, Rodriguez and Appellant were
drinking beer alone in a park and Appellant began talking about his father. Appellant said there
was something weighing heavily on him and he was going to tell her a “deep, dark secret.”
Appellant, who was crying and upset, said that his mother told him Chester had been beating and
abusing her and she asked Appellant to kill him. Appellant explained that Chester was extremely
fit so they needed the element of surprise to succeed. Appellant and Lisbeth first thought about
shooting Chester during his daily run, but they abandoned that plan. They instead decided to
lure Chester to a location where he could be surprised and knocked unconscious so he would be
unable to defend himself. Appellant told Rodriguez that he hid in a linen closet or washroom
until Chester’s back was to him and he then knocked Chester unconscious by striking him in the
back of the head with a large piece of wood like a baseball bat or two-by-four. Rodriguez
recalled Appellant stating that they also stabbed Chester with a knife “to finish the job” but she
was unsure whether it was Appellant or Lisbeth who stabbed Chester. Appellant and Lisbeth put
Chester’s body in his car and drove the car out to a remote desert area of El Paso, but she was not
sure whether it was on the east or west side of El Paso. Rodriguez asked Appellant why he was
1
The jury was not made aware of the results of the grand jury proceeding.
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not in jail for the murder and Appellant replied that they had been suspects but the police did not
have any evidence against them. Appellant explained to Rodriguez that they cleaned the blood
out of the garage using chemicals and he was surprised that none of the neighbors had noticed
the residue as it ran out of the garage into the street because it was a strange color. Rodriguez
did not report the story to the police because she did not believe one of her friends could have
done such a thing and she thought Appellant was just telling her a story to get closer to her. She
left El Paso for approximately a year and she lost contact with Appellant until 1991.
Appellant’s 1990 Confession to Patrick Garrett
In December 1990, Patrick and his wife, Jeanne, were living with Lisbeth. Patrick and
Appellant were sitting on a bench on the porch. Lisbeth was not present during this discussion.
Patrick told Appellant that he was thinking about joining the Army because he thought a war was
coming and he wanted to serve his country like their father had done. Appellant replied that
“guys get killed doing that” and the conversation turned to their father. Patrick then asked if
there was anything Appellant wanted to tell him about their father. Patrick recalled that
Appellant’s “whole demeanor” changed and he placed his arm around Patrick and confessed that
he and Lisbeth had murdered Chester. Appellant told Patrick that they sent him to the movies
that night to get him out of the house. They called Chester and told him that the dishwasher
needed to be fixed. Before Chester arrived, Appellant placed a bat in the dining room. When
Chester leaned over the dishwasher to see what was wrong with it, Appellant came up behind
him with the bat and struck Chester’s head as hard as he could. Lisbeth then stabbed Chester
repeatedly with a knife. They dragged Chester into the garage and when Chester began gasping
for air and gurgling, Lisbeth took the bat from Appellant and crushed Chester’s head with it.
Appellant and Lisbeth put Chester in his Volkswagen and drove him out to a street on the far east
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side of El Paso and left him in the car.2 They disposed of the evidence by putting their clothes,
the baseball bat, and the knife in separate plastic bags and throwing them away in trash bins at
different convenience stores on the west side of El Paso. Patrick did not call the police because
he could not bring himself to turn in his family, but Patrick told the story to his wife, Jeanne, and
to his father-in-law.
Jeanne was at the house the day Appellant confessed to Patrick. She recalled that Patrick
had questions about Chester’s murder and had read articles about it at the library. Patrick
approached Appellant and asked him about Chester’s murder. Lisbeth arrived later while they
were talking and they got into an argument. When Lisbeth stated that she had raised a bunch of
idiots, Appellant replied, “No, you’ve raised a bunch of killers.” Patrick and Appellant went
outside onto the front porch.
Appellant’s 1991 Confession to Theresa Heffelfinger
Appellant and Rodriguez resumed their friendship in 1991 and Rodriguez introduced him
to one of her friends, Theresa Heffelfinger. Rodriguez did not tell Heffelfinger about
Appellant’s confession to her because she still did not believe it. Appellant and Heffelfinger
married on April 18, 1992.
Heffelfinger testified that Appellant spoke to her about Chester’s murder, but he believed
Chester had been attacked by a gang while jogging. In August 1992, they had a major argument
and she brought up the subject of divorce. Appellant broke down and confessed to her that he
and Lisbeth had murdered Chester. Lisbeth and Chester were separated and their arguments had
become physical. Lisbeth convinced Appellant that her life was in danger and she told Appellant
they could not go to the police. On the day of the murder, they arranged for Patrick to be at a
friend’s house and they induced Chester to come over to the house. Appellant told Heffelfinger
2
Patrick testified that Appellant and Lisbeth drove Chester’s car out to “Avenue of Americas.”
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that they had to catch Chester “unaware”. Appellant struck Chester with a baseball bat in the
kitchen and Chester asked him, “Why are you doing this?” Lisbeth became enraged and stabbed
Chester. They dumped Chester’s body in east El Paso and cleaned up the evidence at the house.
They got rid of the knife and their clothing and changed the tires on their car. Heffelfinger
believed Appellant but she did not call the police because she felt threatened by Appellant’s
statement that Lisbeth could never know that he had confessed to her. He also told her that the
authorities did not have evidence to prove they had murdered Chester. Heffelfinger and
Appellant divorced in 1993.
Heffelfinger and Patrick are Interviewed
In September 1995, Patrick’s wife, Jeanne, called Heffelfinger. Heffelfinger told Jeanne
what Appellant had confessed to her about the murder. The police subsequently contacted
Heffelfinger and she gave them a statement. Detectives from the El Paso County Sheriff’s
Department contacted Patrick when he was in jail in Missouri in 1995 for interference with child
custody because he had taken his children without Jeanne’s permission. Patrick denied that
Appellant had made any confession to him. He was interviewed again in 2006 and continued to
deny that Appellant had confessed to the murder. Patrick explained at trial that he could not
bring himself to turn in his family to the police.
Patrick Has a Change of Heart
In January of 2013 near the anniversary of the murder, Patrick contacted the Sheriff’s
Department and reported that Appellant had admitted to him that he and Lisbeth had murdered
Chester.3 Patrick explained that his sixteen-year-old son died of cancer in 2009 and he had since
become a Christian. He believed that if he did not come forward he would be just as guilty of
the murder as Appellant and Lisbeth. Prior to contacting the Sheriff’s Department, he spoke
3
Patrick’s written statement is dated January 5, 2013.
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with both Appellant and his mother and tried to convince them to turn themselves in to the
police, but they refused.
Impeachment of Patrick
On cross-examination, Patrick admitted that he was unemployed had been living with
Lisbeth in El Paso. According to Patrick, he and Lisbeth had an agreement that she would
handle the finances in exchange for his work on her house. He ceased living with Lisbeth on
January 4, 2013, the day before he gave his statement to the Sheriff’s Department. Patrick also
admitted that he had registered the business name, “Hire a Liar.” He explained that there is an
existing franchise business with that name and the company would be required to pay him a fee
if it ever attempted to open a franchise in El Paso. The defense questioned Patrick about emails
sent from his email address claiming that he had been in a facility known as The Underground in
Carthage, Missouri and seen two alien, reptilian creatures. Patrick denied sending those emails.
Appellant’s stepdaughter, Christine Myerson, testified that Patrick told her in 2010 that he
believed the president is an alien reptilian shape-shifter and he had seen reptilian creatures in an
underground storage facility in Carthage, Missouri.
The Defense Case
Robert Snelson testified that he and Appellant were good friends in 1977 and he lived
about four blocks from Appellant. Appellant came to his house on January 3, 1977 to help him
write a paper for his English class. Snelson had a vague memory of the day’s events and he
recalled only that Appellant had been at his house in the evening. He reviewed three written
statements he had given to the Sheriff’s Department in relation to the case but they did not help
refresh his memory. The defense introduced two of those statements into evidence. In the
statement given on January 18, 1977, Snelson stated that Appellant came to his house on
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January 3, 1977 at 11:00 a.m. to help him with an English paper and he stayed until about 3:00
that afternoon. Appellant told Snelson that he would come back later. Sometime between 7:30
and 9:00 that night, Appellant, who was wearing a red, white, and blue warmup suit, stopped at
Snelson’s house and told him that he had to take Patrick somewhere and to call him at 10:00.
Appellant was driving his mother’s Mercury. Snelson called the Garrett residence at 10:00 and
Lisbeth answered. She said that Appellant had gone to get Patrick and she would have him call
Snelson when he returned. Appellant called Snelson at 10:15 or 10:30 and invited him to come
over to the Garrett residence to finish the paper but Snelson’s father would not let him leave the
house. Appellant drove to Snelson’s house in the Mercury and he was wearing the same warmup
suit. They worked together on the paper until about 12:30 a.m.
Christine Ceniceros is a forensic scientist employed by the Texas Department of Public
Safety Crime Lab. Tests were performed to compare a partial DNA profile obtained from swabs
of the steering wheel of the victim’s Volkswagen with the DNA of Chester and Appellant.
Appellant and Chester were excluded as the contributors of that partial DNA profile. Likewise, a
hair found on the bottom right portion of the passenger seat did not match Appellant.
Sharon Turner testified she and Chester had been dating for several months prior to his
death. They did not see each other on January 3, 1977 but Chester called her at 8:00 or 8:30 p.m.
and they talked for 15 to 20 minutes. He told her he had gotten a promotion to lieutenant colonel
and he wanted Sharon and her children to move to Italy with him.
Appellant testified at trial and denied murdering Chester or telling anyone that he had
killed his father. He specifically denied confessing to Rodriguez, Heffelfinger, or Patrick that he
had killed Chester. Consistent with Snelson’s first written statement, Appellant said that he went
to Snelson’s house at 11:00 a.m. on January 3, 1977 to help him with an English paper. Snelson
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had not done any work on the paper and Appellant refused to write it for him. Appellant
explained in detail what Snelson needed to do and he helped him create an outline for the five
paragraph essay. Before leaving at around 2:30 or 3:00 that afternoon, Appellant told Snelson
that Patrick was going to a movie and Chester was going to come over to the house, so he would
return later that evening to help Snelson finish his paper.
Appellant and Lisbeth drove Patrick and his friend to the theater, but he stopped at
Snelson’s house on the way and told him that he would return at 9:30 or 10:00 to help him with
the paper. Appellant and Lisbeth dropped off Patrick and Larson at the theater in time for them
to make the 7:30 showing. Appellant recalled that he stopped by Snelson’s house at around 7:10
or 7:15 and he told Snelson to call him later. After returning home, Appellant played basketball
for a while. He lost track of time and did not leave the house to pick up Patrick and Larson from
the movies until 9:30 or 9:35. He could not find them at the theater and he returned home at
around 10:00. The house was completely dark and his mother was in bed. About five minutes
after he turned on the porch light, Patrick came home from the Larsons’ house. He sent Patrick
straight to bed because it was a school night. Appellant called Snelson and invited him to come
over to finish his paper, but Snelson’s father would not let him go. Appellant went to Snelson’s
house and stayed until about 1:00 a.m.
The following day, Lt. Colonel Hall came to the house and notified them that Chester
was dead. When Appellant began crying, Hall told him that he needed to be a man and Chester
was not even his real father. Appellant recalled that his mother decided they needed to move.
He explained that the neighbors, who they had never met, brought food and asked what had
happened but they did not say they were sorry for the Garretts’ loss or that they would help if
Appellant needed to talk. Appellant told her he did not like the neighbors and they should move.
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Lisbeth told Appellant and Patrick to clean the garage floor because it had oil and transmission
fluid on it. Appellant used muriatic acid to clean the floor because that was how his father had
taught him. They started with the left side because it had more stains but they were interrupted
and did not do the right side until later.
On cross-examination, Appellant admitted that he never contacted the Sheriff’s
Department to find out the status of the investigation into his father’s murder nor did he maintain
contact with his father’s sisters after 1977. Appellant admitted he did not have an alibi for 7:10
p.m. to 10:30 p.m. on the night of January 3, 1977.
SUFFICIENCY OF THE EVIDENCE
In Issue One, Appellant challenges the legal sufficiency of the evidence supporting his
conviction. More specifically, he asserts that the evidence is insufficient to prove identity.
Standard of Review and Relevant Law
In reviewing the sufficiency of the evidence to determine whether the State proved the
elements of the offense beyond a reasonable doubt, we apply the Jackson v. Virginia standard.
Brooks v. State, 323 S.W.3d 893, 895-96 (Tex.Crim.App. 2010), citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under that standard, a reviewing court
must consider all evidence in the light most favorable to the verdict and in doing so determine
whether a rational justification exists for the jury’s finding of guilt beyond a reasonable doubt.
Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of
fact is the sole judge of the weight and credibility of the evidence. See TEX.CODE
CRIM.PROC.ANN. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.
2014). We must presume that the factfinder resolved any conflicting inferences in favor of the
verdict and defer to that resolution. Dobbs, 434 S.W.3d at 170. When reviewing sufficiency of
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the evidence, we are not permitted to reevaluate the weight and credibility of the evidence or
substitute our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638
(Tex.Crim.App. 2010). Our task is to determine whether, based on the evidence and reasonable
inferences drawn therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt. Id.
In our review, we consider both direct and circumstantial evidence and all reasonable
inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9, 13
(Tex.Crim.App. 2007). The standard of review is the same for both direct and circumstantial
evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010); Arzaga v.
State, 86 S.W.3d 767, 777 (Tex.App.--El Paso 2002, no pet.). Each fact need not point directly
and independently to the guilt of the accused, so long as the cumulative force of all the evidence,
when coupled with reasonable inferences to be drawn from that evidence, is sufficient to support
the conviction. Hooper, 214 S.W.3d at 13. Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004); Arzaga, 86
S.W.3d at 777.
The indictment alleged that Appellant intentionally or knowing caused Chester Garrett’s
death by striking him with a baseball bat (Paragraph A) or by stabbing him with a knife
(Paragraph C), or Appellant, with the intent to cause serious bodily injury, committed an act
clearly dangerous to human life and caused the death of Chester Garrett by striking him with a
baseball bat (Paragraph B) or by stabbing him with a knife (Paragraph D). Thus, the indictment
charged Appellant with murder under Section 19.02(b)(1) and (b)(2) of the Texas Penal Code.
TEX.PENAL CODE ANN. § 19.02(b)(1)-(2) (West 2011). The court’s charge instructed the jury on
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the law of parties and the application paragraph permitted the jury to find Appellant guilty as
either a primary actor or as a party.
The State must prove beyond a reasonable doubt that the accused is the person who
committed the charged offense. Miller v. State, 667 S.W.2d 773, 775 (Tex.Crim.App. 1984).
Identity may be proven by direct evidence, circumstantial evidence, or even inferences. Wiggins
v. State, 255 S.W.3d 766, 771 (Tex.App.--Texarkana 2008, no pet.); Roberson v. State, 16
S.W.3d 156, 167 (Tex.App.--Austin 2000, pet. ref’d).
Review of the Evidence
We begin by examining the evidence supporting Appellant’s conviction as the principal
actor. As noted by the State, Appellant incorrectly characterizes the evidence against him as
entirely circumstantial. Three witnesses testified that Appellant confessed to them that he and
his mother killed the victim by hitting him with a baseball bat and stabbing him with a knife. It
is well established that proof the defendant admitted or confessed to killing the deceased is
direct, not circumstantial evidence. Ridyolph v. State, 545 S.W.2d 784 (Tex.Crim.App. 1977);
see Barefoot v. State, 596 S.W.2d 875, 880 (Tex.Crim.App. 1980). Further, an extrajudicial
confession alone is sufficient to establish the identity of the perpetrator of a crime. Emery v.
State, 881 S.W.2d 702, 706 (Tex.Crim.App. 1994); Gribble v. State, 808 S.W.2d 65, 70
(Tex.Crim.App. 1990).
Appellant urges the court to completely disregard the extrajudicial confessions because
the three witnesses lack credibility, but the standard of review does not permit us to act as a
thirteenth juror or substitute our judgment for that of the fact finder. It was the jury’s task to
evaluate the credibility of these witnesses, weigh all of the evidence, and draw inferences from
the evidence, and we must defer to the jury’s determination in these matters. Thus, the
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extrajudicial confessions alone are sufficient to prove Appellant’s identity as the perpetrator of
his father’s murder.
Even though the State was not required to corroborate the extrajudicial confessions with
respect to Appellant’s identity as the perpetrator of the offense, there is evidence which does just
that.4 First, it is undisputed that Appellant and Lisbeth were at home alone when Chester came
to the residence that evening. Patrick had gone to a movie even though it was a school night.
Appellant testified before the grand jury that he and Lisbeth were home when Chester came by
that evening. Second, there is evidence that Chester left his quarters suddenly because the lights
were on and he left a half-eaten sandwich on the table. This is consistent with Appellant’s
statements that he and Lisbeth lured Garrett to the house on the pretext that the dishwasher was
broken. Third, there is evidence that the murder took place at the Garrett residence on the
evening of January 3, 1977. Neither Lisbeth nor Appellant picked up Patrick and his friend at
the theater and the boys had to call Larson’s mother for a ride. When Larson’s mother dropped
Patrick off at the house, it was completely dark and no one answered the door. He returned
home later and the house was still dark except for the porch light. Appellant made Patrick go
straight to his bedroom, and the following morning Appellant made Patrick eat breakfast in his
bedroom and go to school without a shower. The jury could have inferred that Appellant was
trying to prevent Patrick from seeing any evidence of the murder in the house. Both Lisbeth and
Appellant were uncooperative and Lisbeth did not consent to a search of the house until more
than a week after the murder. In the meantime, Appellant, at the direction of his mother, cleaned
the garage floor with muriatic acid. The jury could have concluded that Appellant was
4
In Texas, an extrajudicial confession of the accused is insufficient to support conviction unless it is corroborated
by independent evidence tending to show that a crime was committed. Gribble, 808 S.W.2d at 70. It need not be
corroborated as to the person who committed it, since identity of the perpetrator is not a part of the corpus delicti
and may be established by an extrajudicial confession alone. Id.
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destroying any evidence of the murder on the garage floor. Fourth, the location where Chester’s
vehicle and body were found was consistent with what Appellant had told Rodriguez, Patrick,
and Heffelfinger. We conclude that a rational trier of fact could have found beyond a reasonable
doubt that Appellant was the perpetrator of the murder of Chester Garrett. See Emery, 881
S.W.2d at 706 (holding a defendant’s extrajudicial confessions sufficient to establish his identity
where three such confessions in evidence gave certain details of the offense). It is unnecessary
to address the sufficiency of the evidence supporting Appellant’s conviction as a party. Issue
One is overruled.
MEDICAL EXAMINER’S TESTIMONY
In Issue Two, Appellant argues that the trial court erred by allowing the medical
examiner to testify from an autopsy report which he did not author. Citing Crawford v.
Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177 (2004) and Burch v. State,
401 S.W.3d 634, 635-37 (Tex.Crim.App. 2013), he maintains that the forensic autopsy report is
testimonial and the admission of its contents violated the Confrontation Clause.
The trial took place thirty-six years after the autopsy of Chester Garrett. The autopsy
report was not admitted into evidence. The medical examiner, Dr. Contin, reviewed the file and
autopsy report and examined the photographs related to the autopsy. He described Chester’s
injuries and stated his expert opinion regarding the cause of death.
Standard of Review
We review a trial court’s decision regarding the admissibility of evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010); McDonald v. State,
179 S.W.3d 571, 576 (Tex.Crim.App. 2005). When deciding whether the admission of certain
statements violated a defendant’s right to confrontation, we review the trial court’s ruling de
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novo. Wall v. State, 184 S.W.3d 730, 742-43 (Tex.Crim.App. 2006).
No Confrontation Clause Violation
The Confrontation Clause of the Sixth Amendment provides that in all criminal
prosecutions, the accused shall enjoy the right to be confronted with the witnesses. U.S.
CONST. amend. VI; Langham v. State, 305 S.W.3d 568, 575 (Tex.Crim.App. 2010). In
Crawford v. Washington, the Supreme Court held that the Confrontation Clause bars out-of-court
statements that are testimonial, unless the declarant is unavailable and the defendant had a prior
opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59, 124 S.Ct. at 1369. The
Confrontation Clause does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted. Williams v. Illinois, --- U.S. ---, 132 S. Ct. 2221,
2235, 183 L. Ed. 2d 89 (2012); Crawford, 541 U.S. at 59 n.9, citing see Tennessee v. Street, 471
U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985). In Williams v. Illinois, the Supreme
Court observed that the rules of evidence permit an expert to express an opinion that is based on
facts that the expert assumes, but does not know, to be true. Id., --- U.S. ---, 132 S. Ct. at 2228.
Further, the expert may explain the facts on which his or her opinion is based without testifying
to the truth of those facts. Id. The Supreme Court held that out-of-court statements related by an
expert solely for the purpose of explaining the assumptions on which the expert’s opinion rests
are not offered for their truth and fall outside the scope of the Confrontation Clause. Id., --- U.S.
---, 132 S. Ct. at 2228.
In Gomez v. State, No. 08-12-00001-CR, 2014 WL 3408382 at *6 (Tex.App.--El Paso
2014, no pet.), we applied Williams to the same situation as presented here. There, Dr. Contin
testified as an expert after he utilized an autopsy report prepared by another medical examiner,
Dr. Paul Shrode, and reviewed the autopsy photos. Dr. Contin testified regarding his expert
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opinion that each victim’s cause of death was a gunshot wound to his head. Citing Williams v.
Illinois, we held that there was no Confrontation Clause violation because the statements in the
autopsy reports on which Dr. Contin based his expert opinion were not offered for the truth of
the matter asserted. Gomez v. State, No. 08-12-00001-CR, 2014 WL 3408382 at *7-8. The same
analysis and conclusion applies in this case. The statements in the autopsy report were not
offered for the truth of the matter asserted but they instead formed the basis of Dr. Contin’s
expert opinion regarding cause of death. Finding no Confrontation Clause violation, we overrule
Issue Two.
PRE-INDICTMENT DELAY
In Issue Three, Appellant contends that the trial court erred by denying his motion to
dismiss based on pre-indictment delay. Prior to trial, Appellant moved to dismiss the indictment
on the ground that the pre-indictment delay of more than thirty-six years violated his right to Due
Process. After a hearing, the trial court denied the motion. Appellant did not ask the trial court
to make findings of fact and conclusions of law.
Standard of Review and Relevant Law
When reviewing a trial court’s ruling on a motion to dismiss due to pre-indictment delay,
we apply a bifurcated standard of review. State v. Krizan-Wilson, 354 S.W.3d 808, 815
(Tex.Crim.App. 2011). Under this standard, we give almost total deference to a trial court’s
findings of fact that are supported by the record, as well as any mixed questions of law and fact
that rely upon the credibility of witnesses. Id. We apply a de novo standard of review to pure
questions of law and mixed questions that do not depend on credibility determinations. Id.
Statutes of limitations are the primary guarantee used to protect citizens from stale
criminal charges that impair those citizens’ abilities to defend themselves, but they are not the
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only redress because the Due Process Clause provides additional protection from “oppressive
delay.” Krizan-Wilson, 354 S.W.3d at 813-14. There is no statute of limitations for murder.
TEX.CODE CRIM. PROC.ANN. art. 12.01(1)(A) (West 2015). A defendant is entitled to relief for
pre-indictment delay under the Due Process Clause when he shows that the delay: (1) caused
substantial prejudice to his right to a fair trial, and (2) was an intentional device used to gain a
tactical advantage over the accused or for some other bad-faith purpose. Krizan-Wilson, 354
S.W.3d at 814-15. There must be proof of both elements. Id. at 814.
The Evidence
Kyle Myers is one of the assistant district attorneys who prosecuted this case at the trial
in 2013 and he testified at the hearing on Appellant’s motion to dismiss due to pre-indictment
delay. It is undisputed that the investigation into Chester’s murder began on January 4, 1977
with the discovery of his body. The case against Appellant was presented to the grand jury on
January 13 or January 14, 1977 and the grand jury no-billed him. The case went cold until late
1995 when the Sheriff’s Department learned that Appellant had made inculpatory statements to
Heffelfinger and Patrick.
Heffelfinger gave a written statement to the Sheriff’s Department on November 2, 1995
stating that Appellant had confessed to her that he murdered Chester. Jeanne Patterson also gave
a written statement indicating that Patrick told her that Appellant had confessed to him that he
murdered his father. Patrick, however, denied that Appellant made any confession to him and
the case went cold again.
The investigation was renewed in 2006 when Chester’s sister, Jackie Connor, called the
Sheriff’s Department and told investigators that Patrick had told her family that Appellant had
admitted to him that he murdered Chester. When Patrick was interviewed, however, he again
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denied that Appellant had made any inculpatory statements to him. The District Attorney’s
Office determined that probable cause to arrest Appellant did not exist unless Patrick admitted
that Appellant had confessed to him.
On January 5, 2013, Patrick called the Sheriff’s Department and finally gave a statement
admitting that Appellant had confessed to him that he and Lisbeth murdered Chester. The
Sheriff’s Department interviewed Heffelfinger again on January 23, 2013. Myers testified that it
was not until February 2013 that the prosecutors felt they had probable cause to arrest both
Appellant and Lisbeth for Chester’s murder. The critical factor in the probable cause decision
was that Patrick’s statement was consistent with Heffelfinger’s statement.
On cross-examination, Appellant asked Myers to identify the potential witnesses who had
died prior to trial. Myers identified Lt. Gary Gabbert who led the investigation and interviewed
Patrick in 1996, Wallace Brown, and two crime scene investigators, R. J. McCrea and Jose Luis
Garola. Other than cross-examining Myers, the defense did not produce any evidence at the
hearing.
Substantial Prejudice
Citing Gonzales v. State, 435 S.W.3d 801 (Tex.Crim.App. 2014), Appellant first argues
that prejudice must be presumed. In Gonzales, a speedy trial case under the Sixth Amendment,
the Court of Criminal Appeals found that a delay of six years is presumptively prejudicial. Id. at
809. The court held that Speedy Trial Clause is limited to an accused and a person who has not
been formally charged cannot seek its protection. Id., 435 S.W.3d at 808, citing United States v.
Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). The court further stated that
“[a]ny delay between commission of the crime and indictment is controlled by the applicable
statute of limitations.” Id., quoting Kroll v. United States, 433 F.2d 1282, 1286 (5th Cir. 1970).
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Appellant reasons that prejudice must be presumed because there is no statute of limitations for
murder. Gonzales is inapplicable here because the issue before us involves the Due Process
Clause of the Fifth Amendment, not the Sixth Amendment’s Speedy Trial Clause. Further,
relevant authority indicates that prejudice may not be presumed.
In United States v. Marion, 404 U.S. at 322, 92 S.Ct. at 464, the United States Supreme
Court explained that statutes of limitation represent legislative assessments of relative interests of
the State and the defendant in administering and receiving justice. Statutes of limitation provide
predictability by specifying a limit beyond which there is an irrebuttable presumption that a
defendant’s right to a fair trial would be prejudiced. Id. Quoting its decision in Toussie v.
United States, 397 U.S. 112, 114-115, 90 S. Ct. 858, 860, 25 L. Ed. 2d 156 (1970), the Court
further stated:
The purpose of a statute of limitations is to limit exposure to criminal prosecution
to a certain fixed period of time following the occurrence of those acts the
legislature has decided to punish by criminal sanctions. Such a limitation is
designed to protect individuals from having to defend themselves against charges
when the basic facts may have become obscured by the passage of time and to
minimize the danger of official punishment because of acts in the far-distant past.
Such a time limit may also have the salutary effect of encouraging law
enforcement officials promptly to investigate suspected criminal activity.
Marion, 404 U.S. at 322-23, 92 S.Ct. at 464-65.
In Krizan-Wilson, the Court of Criminal Appeals observed that “[f]or the offense of
murder, the Texas legislature has intentionally chosen not to define a statute of limitations,
explicitly allowing prosecutors to indict suspected murderers when they are ready to do so, and
has determined that any such delay, without more, does not offend the community’s sense of fair
play and decency.” Krizan-Wilson, 354 S.W.3d at 820. We conclude that Appellant was
required to show actual prejudice in order to establish a due process violation. See United States
v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 2048-49, 52 L. Ed. 2d 752 (1977), citing Marion,
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404 U.S. at 324-325, 92 S.Ct., at 465.
The record of the dismissal hearing shows that four potential witnesses died during the
delay. There is no evidence in the record regarding the content of their testimony.
Consequently, Appellant did not show that their testimony would have been beneficial to his
defense. Appellant additionally argues in his brief that the medical examiner who performed the
autopsy was deceased at the time of trial. Appellant did not present any evidence regarding this
witness at the hearing. Further, the record does not show how this witness’s testimony would
have benefitted the defense. We conclude that Appellant did not carry his burden of establishing
actual prejudice resulting from the pre-indictment delay.
Was the Indictment Delayed to Gain a Tactical Advantage?
Even if we agreed with Appellant that the lengthy delay is presumptively prejudicial, we
may not infer bad faith from the existence of delay and prejudice. Krizan-Wilson, 354 S.W.3d at
818. Appellant argues that he proved that the prosecution intentionally delayed indictment in
order to gain a tactical advantage or for some other bad faith purpose because the evidence
showed that probable cause existed to arrest Appellant in 2006. The Court of Criminal Appeals
observed in Krizan-Wilson that the State is not required to conduct a continuous investigation.
Krizan-Wilson, 354 S.W.3d at 818-19, citing Ibarra v. State, 11 S.W.3d 189, 193-94
(Tex.Crim.App. 1999). Likewise, “prosecutors are under no duty to file charges as soon as
probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt
beyond a reasonable doubt.” Krizan-Wilson, 354 S.W.3d at 819, quoting U.S. v. Lovasco, 431
U.S. 783, 791, 97 S. Ct. at 2049. There is no evidence in the record from which it can be
concluded that the delay was an intentional device used to gain a tactical advantage or for some
other bad faith purpose. The evidence instead shows that probable cause to arrest likely did not
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exist until 2006 and the subsequent delay resulted from the prosecutors’ decision to continue the
investigation until they could obtain a statement from Patrick. There is a distinction between
prosecutorial delays for investigatory purposes and delays for the purpose of gaining a tactical
advantage over the accused. Krizan-Wilson, 354 S.W.3d at 820, citing Ibarra, 11 S.W.3d at 194
and Lovasco, 431 U.S. at 795, 97 S.Ct. at 2051. Because Appellant has failed to show that the
State delayed indictment in order to gain a tactical advantage or for some other bad faith
purpose, we conclude that the trial court did not err by denying the motion to dismiss. Issue
Three is overruled.
JURY ARGUMENT
In his final issue, Appellant contends that the prosecutor’s improper jury argument at
guilt-innocence deprived Appellant of his right to a fair trial. During closing argument, defense
counsel argued that the State’s entire case rested solely on the testimony of three interconnected
people, Rodriguez, Heffelfinger, and Patrick, and he vigorously challenged the credibility of
each of them. He characterized Patrick as a liar, a con man and the driving force behind the case.
Defense counsel asserted that Patrick became angry and went to the police because Appellant
and Lisbeth stopped supporting him financially. In response, the prosecutor argued that Jeanne
Patterson had no motive to lie or frame Appellant and she corroborated Patrick’s testimony. The
prosecutor then made the following argument:
[Prosecutor]: So then what else does Jeanne Patterson tell you, who has no
motive to get in on this conspiracy to convict an innocent man? She tells you
after the conversation on the porch, Patrick comes back into the bedroom. And
because of the rules of evidence, she can't say what he told her, but she can say
they talked, they talked about it and how his demeanor was, that he was upset,
crying and that he had learned what had happened. [Emphasis added.]
[Defense counsel]: Your Honor, I’m going to object. That's an improper
argument.
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[The Court]: Sustained.
[Defense counsel]: Instruction to disregard.
[The Court]: I’m going to ask the jurors to just disregard the comment regarding
the rules of evidence. Go ahead.
[Defense counsel]: Move for mistrial, Your Honor.
[The Court]: Denied.
[Prosecutor]: She told you that he came back in, that they talked and that he was
clearly visibly upset. And Patrick Garrett told you that is when he told his wife
what his brother had just told him, all of it. All of these little pieces continue to
be corroborated either because this is the greatest conspiracy ever or it’s because
it’s the truth.
Standard of Review and Relevant Law
The trial court sustained Appellant’s objection to the highlighted argument and instructed
the jury to disregard it. Consequently, the issue on appeal is whether the trial court abused its
discretion by denying the motion for mistrial. See Archie v. State, 221 S.W.3d 695, 699
(Tex.Crim.App. 2007). If the ruling falls within the zone of reasonable disagreement, it must be
upheld. Id. A mistrial is warranted only in extreme circumstances where the prejudice is
incurable. Id.
Generally, there are four proper areas of jury argument: (1) summation of the evidence;
(2) reasonable deductions from the evidence; (3) answers to an argument of opposing counsel;
and (4) pleas for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex.Crim.App.
2011). It is well established that a prosecutor may not use closing argument to get evidence
before the jury that is outside the record and prejudicial to the accused. Borjan v. State, 787
S.W.2d 53, 57 (Tex.Crim.App. 1990). Likewise, the prosecutor is not permitted to convey to the
jury during argument that he possesses specialized knowledge or expertise about a contested fact
issue. Jackson v. State, 17 S.W.3d 664, 675 (Tex.Crim.App. 2000); see Johnson v. State, 698
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S.W.2d 154, 167 (Tex.Crim.App. 1985); Johnson v. State, 698 S.W.2d 154, 167 (Tex.Crim.App.
1985), superseded on other grounds by Mayes v. State, 816 S.W.2d 79 (Tex.Crim.App.
1991)(“The implication of special expertise coupled with an implied appeal to the jury to rely on
that expertise in deciding the contested issues before it is improper.”).
The prosecutor’s argument did not violate these rules because she did not get evidence
before the jury that is outside of the record nor did she convey to the jury that she had some
specialized knowledge about a fact issue. She properly explained that Patterson could not testify
to the substance of her conversation with Patrick because it would violate the rules of evidence,
but Patterson had testified about what she observed -- after speaking privately with Appellant
about what had happened to Chester, Patrick was upset and had tears in his eyes. Because the
prosecutor’s argument was not improper, the trial court did not abuse its discretion by denying
the motion for mistrial. Issue Four is overruled. Having overruled each issue presented on
appeal, we affirm the trial court’s judgment.
November 4, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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