in the Interest of A. N. B., a Child

NO. 07-09-00150-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 20, 2010
STEVEN T. LOGAN, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-411,661; HONORABLE DAVID GLEASON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Steven T. Logan, appeals his conviction for capital murder and
sentence of incarceration for life in the Institutional Division of the Texas Department of
Criminal Justice. We affirm.
Factual and Procedural Background
Appellant was charged with murdering his mother, Vicki Logan, and
grandmother, Wanda Taylor, during the same criminal transaction, on or about January
27, 2006.1 Vicki and Wanda lived next door to one another. Appellant lived with Vicki
until their relationship became so strained that Vicki kicked appellant out of her house.
Appellant then moved into Wanda’s house. A day or two before Vicki and Wanda were
murdered, Wanda had the locks on her house changed. Wanda had informed a teller at
her bank that she was changing her locks because she was going to kick her grandson
out of her house. However, on the date of the murders, appellant’s belongings were still
in the house and he still had a working code to the keypad for the garage door opener.
Vicki did not arrive at her job on January 27, 2006. Because of Vicki’s excellent
work attendance, some of her co-workers began attempting to contact her. When their
efforts were unsuccessful, two of Vicki’s co-workers, Bryan Scott and Lauren Marshall,
decided to go to her house to check on her. When Scott and Marshall arrived, they saw
Vicki’s car and appellant’s truck parked at Vicki’s house. Scott and Marshall walked
around Vicki’s and Wanda’s homes, knocking on doors and windows, but no one
responded. Marshall called 911 and informed the 911 operator that she thought that
appellant had done something to Vicki. Shortly after the 911 call, appellant exited the
front of Vicki’s home with his pit bull. Scott and Marshall asked appellant where Vicki
was and appellant responded that she must be at work. When appellant was informed
that Vicki was not at work, he stated that she was probably at Wanda’s house.
Appellant then went to Wanda’s house, entered a code into the keypad on the
garage door, entered the residence for less than a minute, and then came out of the
house acting confused. Appellant stated that Vicki and Wanda were inside and that
1
See TEX. PENAL CODE ANN. § 19.03(a)(7) (Vernon Supp. 2009).
2
there was blood everywhere. Appellant then got sick. Appellant again went into the
house for a few seconds. When appellant reemerged, he began acting hysterically and
opined that drug dealers must have done this to get back at him. Scott attempted to
console appellant and noticed that appellant had redness and scratches on the
knuckles of his hands.
Kevin Ivy of the Lubbock Fire Department was the first responder at the scene.
When Ivy asked appellant what was going on, appellant responded that he had spent
the night at a friend’s house. When Ivy pressed appellant regarding what was in
Wanda’s house, appellant told Ivy that he would have to go inside and see for himself.
In talking to appellant, Ivy noted that appellant had scratches on his arms and hands.
Ivy eventually entered the house and found the bodies. As other responders arrived at
the scene, Lubbock Police Detective Rich Calderon handcuffed appellant and placed
him in another officer’s vehicle for officer safety because Calderon knew from the “call
sheet” that appellant had a history of violent behavior. During the investigation of the
scene, it was determined that both Wanda and Vicki were dead.
Appellant was transported to the police department for questioning, but he was
not placed under arrest. No statement from appellant was taken and he was released.
In the evening before the bodies of Vicki and Wanda were discovered, appellant
spent some time with a group of friends. At some point, the group decided to go to a
local bar, but appellant did not go with them. Appellant met up with his friends after the
group left the bar and appellant asked one of his friends to rent him a hotel room
because appellant had left his identification at his home. After the investigation of this
3
case progressed, appellant contacted one of his friends and asked him to lie to his
attorney about whether appellant went to the bar with the group on the night in question.
Detective Wesley Shields, the identification officer for the case, investigated
Wanda’s house and found no signs of forced entry. Further, he noted that it did not
appear that anything had been stolen from the residence. In the room that had been
appellant’s room, Shields found a mirror on which the phrase “Sorry we missed you”
had been written in lipstick. Pieces of duct tape were found throughout the house and a
black cord was found under Vicki’s body. Finally, some checks were found in a pair of
appellant’s boots that appeared to have been stolen from Wanda’s checkbook.
On January 28, 2006, Detective Shields searched appellant’s vehicle. This
search was conducted without a warrant or appellant’s consent. As a result of this
search, Shields found a black cord, a pair of gloves, and a toboggan. The black cord
that was found in appellant’s vehicle was described as “similar” to the black cord found
lying under Vicki’s body.
The evidence that was collected was submitted to the Department of Public
Safety laboratory for DNA testing. None of the DNA testing matched appellant’s DNA.
In addition, the black cord found under Vicki’s body was compared to the black cord
found in appellant’s vehicle. The cords were determined to be “similar,” and no
differences could be determined between the cords.
The autopsy of Wanda’s body determined that the cause of Wanda’s death was
asphyxia from strangulation. The autopsy of Vicki’s body determined that the cause of
Vicki’s death was asphyxia from strangulation and blunt force trauma.
4
On February 8, 2006, appellant was charged, by indictment, with the offense of
capital murder. A jury trial was held on April 6-9, 2009. After the State began
presenting its case-in-chief, appellant moved to suppress the evidence that had been
found in his vehicle, but specifically the black cord. This motion was heard by the trial
court outside of the presence of the jury and was denied. At the conclusion of the
State’s case-in-chief, appellant moved for an instructed verdict, which the trial court
denied. Following the trial, the jury found appellant guilty of capital murder, and the trial
court sentenced appellant to incarceration for life without the possibility of parole.
By his appeal, appellant presents five issues, which will be addressed in the
following order. By his first issue, appellant contends that the trial court erred in
overruling his motion to suppress evidence seized from the warrantless search of his
vehicle. By his second and third issues, appellant contends that the trial court’s jury
charge allowed the jury to convict him without a unanimous verdict in violation of both
the United States and Texas constitutions. By his fifth issue, appellant contends that
the trial court committed multiple evidentiary errors and that the cumulative effect of
these errors denied him his right to a fair trial. Finally, by his fourth issue, appellant
contends that the trial court erred in failing to instruct a verdict in appellant’s favor
because the evidence was insufficient to support appellant’s guilt of the offense of
capital murder.
Motion to Suppress
By his first issue, appellant contends that the trial court erred in overruling his
motion to suppress evidence seized from the warrantless search of his automobile.
5
Evidence seized by the police without a warrant may be admitted only if an exception to
the Fourth Amendment's warrant requirement applies. McGee v. State, 105 S.W.3d
609, 615 (Tex.Crim.App 2003) (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113
S. Ct. 2130, 124 L. Ed. 2d 334 (1993)). Generally, a search conducted without a warrant
is considered unreasonable per se. Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct.
2013, 144 L. Ed. 2d 442 (1999) (citing California v. Carney, 471 U.S. 386, 390-91, 105
S. Ct. 2066, 85 L. Ed. 2d 406 (1985)). But there is an exception for vehicles--a
warrantless search of a vehicle is reasonable if law enforcement officials have probable
cause to believe that the vehicle contains evidence of a crime. See Neal v. State, 256
S.W.3d 264, 282 (Tex.Crim.App. 2008); Wiede v. State, 214 S.W.3d 17, 24
(Tex.Crim.App. 2007).
Standard of Review
Probable cause requires an evaluation of probabilities, and probabilities "are the
factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct.
1302, 93 L. Ed. 1879 (1949). Probable cause is a "fluid concept"; its "substantive
content" is derived from "the particular context in which" it is assessed. Wiede, 214
S.W.3d at 24 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134
L. Ed. 2d 911 (1996)). Probable cause to search exists when there is a "fair probability"
of finding inculpatory evidence at the location being searched. Neal, 256 S.W.3d at
282. Known facts and circumstances include those personally known to law
6
enforcement officers or those derived from a "reasonably trustworthy" source. Torres v.
State, 182 S.W.3d 899, 901-03 (Tex. Crim. App. 2005).
A trial court's decision on a motion to suppress is reviewed under an abuse of
discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996).
When reviewing a trial judge's decision to deny a motion to suppress where probable
cause to search was challenged, an appellate court must afford "almost total deference
to a trial court's express or implied determination of historical facts and review de novo
the court's application of the law of search and seizure to those facts." State v. Ross,
32 S.W.3d 853, 856 (Tex.Crim.App. 2000) (citing Carmouche v. State, 10 S.W.3d 323,
327 (Tex.Crim.App. 2000)). When, as here, the trial court makes explicit fact findings,
we determine whether the evidence, when viewed in the light most favorable to the trial
court's ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 818, 818
(Tex.Crim.App. 2006). We then review the trial court's legal ruling de novo. Id.
When determining probable cause, an appellate court considers the totality of the
circumstances. Dixon v. State, 206 S.W.3d 613, 616 (Tex.Crim.App. 2006). This
means that a "divide-and-conquer" or piecemeal approach is prohibited. Wiede, 214
S.W.3d at 25. While the subjective intent or motive of law enforcement officials is not
taken into account when considering the totality of the circumstances, the training,
knowledge, and experience of law enforcement officials is taken into consideration. Id.
In addition, probable cause is based on the collective knowledge of all of the police
officers involved and is not dependent upon what facts were specifically known to the
7
officer conducting the search or seizure. See Woodward v. State, 668 S.W.2d 337,
345-46 (Tex.Crim.App. 1984).
Analysis
In the present case, it is important to note that appellant did not move to
suppress the evidence obtained from his vehicle until well into the State’s presentation
of its case-in-chief. Thus, all of the evidence that had been presented relating to what
facts surrounding the events of January 27, 2006, were known to the police must be
considered in determining whether the January 28, 2006 warrantless search of
appellant’s vehicle was legal.
Additionally, the trial court entered findings of fact and conclusions of law relating
to its ruling on appellant’s motion to suppress. We must accept these findings of fact as
true so long as there is some evidence, taken in the light most favorable to the trial
court’s ruling, to support those findings. Kelly, 204 S.W.3d at 818.
The trial court found that the witness who called 911 (Marshall) had informed the
police that appellant had been violent in the past. The testimony of Marshall and
Calderon support this finding. The trial court found that the police had been informed
that appellant had gained entrance into Wanda’s residence by using the garage keypad.
This finding is supported by the testimony of Marshall and Scott. The trial court found
that one witness had informed police that appellant had been faking his attempt to cry
after discovering the bodies. This finding is supported by Marshall’s testimony. The
trial court found that police had been informed that Vicki had kicked appellant out of her
home and that Wanda had done or was planning to do the same. This finding is
8
supported by the testimony of Shields. The trial court found that the police had
recovered checks stolen from Wanda in appellant’s room. This finding was supported
by Shields’s testimony. The trial court found that numerous bloodstains and blood
splatter was found at the crime scene. This finding is supported by photos of the crime
scene and the testimony of the first responders. The trial court found that the police
were informed that appellant’s vehicle had been at Wanda’s home earlier in the day,
left, and returned within a few hours of the discovery of the bodies. This finding was
supported by the testimony of Michael Calvillo, a neighbor of Wanda. The trial court
further found that witnesses informed police that appellant appeared to have been
freshly showered when the bodies were discovered. This finding is supported by the
testimony of Scott. The trial court found that there were no signs of forced entry into
Wanda’s home. This finding was supported by Shields’s testimony.2
Probable cause to search a vehicle exists when there is a “fair probability” of
finding inculpatory evidence at the location being searched. Neal v. State, 256 S.W.3d
264, 282 (Tex.Crim.App. 2008). We believe that the trial court’s findings are sufficient
to establish probable cause to believe that appellant had been involved in the murder of
Vicki and Wanda and that, because of the prevalence of blood located at the scene of
the crime, evidence, in the form of blood, might be located in appellant’s vehicle. See
2
While appellant implies that some of the trial court’s findings were not supported
by evidence presented prior to the hearing on the motion to suppress, each of the
findings addressed in this paragraph were supported by evidence that was before the
trial court and could be properly considered by the trial court.
9
Zarychta v. State, 44 S.W.3d 155, 163-64 (Tex.App.—Houston [14th Dist.] 2001, pet.
denied).3
In his appellate brief, appellant relies heavily on the fact that the police detained
appellant for questioning, but released him. According to appellant, this evidences that
the police did not feel as if they had probable cause to arrest him. Appellant’s argument
is that, if the police did not have probable cause to arrest appellant, then they did not
have probable cause to search his vehicle. However, there are a few holes in
appellant’s argument. First, appellant was detained for questioning on January 27th,
within a few hours of the discovery of the bodies, while the search of appellant’s vehicle
did not occur until January 28th, after significant additional investigation of the scene of
the crime had been completed. Second, that the police did not arrest appellant is not
conclusive on the issue of whether they had probable cause to arrest appellant. Finally,
there is no evidence of when, on January 27th, the police determined that there were no
signs of forced entry into Wanda’s home. Clearly, this was a key fact in establishing
probable cause to believe that appellant, who was the only known person that had
access to Wanda’s home, had committed the crime.
Because we conclude that the facts known to the police were sufficient to warrant
a reasonable person to conclude that there was a "fair probability" that a search of
3
We are cognizant, as appellant points out, that Zarychta involved the seizure,
rather than the search, of a vehicle. However, we believe that the facts known to the
police at the time of the January 28th search were sufficient to establish probable cause
to believe that evidence of a crime would be found in the vehicle. Nothing more is
required to justify a search. See Neal, 256 S.W.3d at 282.
10
appellant’s vehicle would yield inculpatory evidence, we overrule appellant’s first issue.
See Neal, 256 S.W.3d at 282.
Unanimous Verdict
By his second and third issues, appellant contends that the trial court committed
fundamental error under both the United States Constitution and the Texas Constitution
by charging the jury in a way that would allow the jury to convict appellant without a
unanimous verdict. Appellant contends that a capital murder charge, under Texas
Penal Code section 19.03(a)(7)(A),4 that combines multiple murder allegations into one
application paragraph risks a jury verdict that is non-unanimous in that the jury may not
have agreed as to which murders were proven beyond a reasonable doubt.
Standard of Review
In reviewing a claim of jury charge error, the reviewing court must first determine
whether there was error. Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App.
1987). If error is found, then the court must determine which harm standard to apply,
which depends upon whether the complaining party objected to the charge on the
grounds asserted on appeal. See id. at 171.
4
Section 19.03. Capital Murder
(a) A person commits an offense if the person commits murder as defined
under Section 19.02(b)(1) and:
(7) the person murders more than one person:
(A) during the same criminal transaction
TEX. PENAL CODE ANN. § 19.03(a)(7)(A).
11
Under both the United States and Texas constitutions, appellant was entitled to a
unanimous jury verdict. See Jefferson v. State, 189 S.W.3d 305, 311-12
(Tex.Crim.App. 2006); Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005). To
determine what the jury must be unanimous about, we must examine the statute to
determine whether the legislature created multiple, separate offenses or a single
offense with different manners or means of commission. Pizzo v. State, 235 S.W.3d
711, 714 (Tex.Crim.App. 2007).
Analysis
Looking to the statute under which appellant was charged in this case, for the
jury to convict appellant of capital murder, it must have found that (1) appellant, (2)
intentionally or knowingly, (3) caused, (4) the deaths of Vicki and Wanda, (5) during the
same criminal transaction. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(7)(A).
The application paragraph of the court’s jury charge provides,
. . . if you find from the evidence beyond a reasonable doubt that on or
about January 27, 2006, in Lubbock County, Texas, as alleged in the
indictment, the defendant, STEVEN T. LOGAN, did then and there
intentionally and knowingly cause the deaths of Wanda Turner and Vicki
Logan, during the same criminal transaction, by strangling each of them
with his hands or cord, then you will find the defendant, STEVEN T.
LOGAN, guilty of the offense of capital murder . . . .
Comparing the elements of the offense with the application paragraph in the
court’s charge makes it clear that the charge did not allow the jury to render a non-
unanimous verdict. Applying the plain meaning to the words used in the court’s jury
charge, no juror could have found appellant guilty of capital murder unless the juror was
12
convinced beyond a reasonable doubt that appellant had murdered both Vicki and
Wanda.
We overrule appellant’s second and third issues.
Cumulative Error
By his fifth issue, appellant contends that the trial court violated appellant’s due
process rights by allowing inadmissible hearsay testimony before the jury and that the
cumulative effect of such error was reversible. At a very early point in the trial of
appellant, a bench conference was held outside of the jury’s presence. Appellant
objected to testimony that Vicki and Wanda were afraid of appellant because such
testimony would constitute hearsay. The State responded to this objection indicating
that testimony of Vicki’s and Wanda’s fear of appellant fit within the “state of mind”
exception to the hearsay rule. See TEX. R. EVID. 803(3). After hearing arguments
regarding the scope of testimony allowable under Rule 803(3), the trial court overruled
appellant’s hearsay objection.
Standard of Review
The doctrine of cumulative error provides that the cumulative effect of several
errors can, in the aggregate, constitute reversible error, even though no single instance
of error would. See United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998);
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999) (stating, in dicta, that
cumulative error could constitute reversible error). However, before the doctrine of
cumulative error may be applied, the errors complained of must have been properly
13
preserved, see TEX. R. APP. P. 33.1, and must actually constitute error, see
Chamberlain, 998 S.W.2d at 238 (“[W]e are aware of no authority holding that non-
errors may in their cumulative effect cause error.”).
To preserve error, a complaining party must make a timely and specific request,
objection, or motion and obtain an express or implied ruling on that request, objection,
or motion. TEX. R. APP. P. 33.1(a); Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App.
2008). Moreover, an objection must be made each time inadmissible evidence is
offered unless the complaining party obtains a running objection or obtains a ruling on
his complaint in a hearing outside the presence of the jury. Lopez, 253 S.W.3d at 684.
An objection to all testimony on a given subject made in a hearing outside of the jury’s
presence is sufficient to preserve error as to the totality of that evidence. See Ethington
v. State, 819 S.W.2d 854, 859 (Tex.Crim.App. 1991). However, the nature of the
objection and the trial court’s ruling on that objection will be constrained to the specific
grounds for the ruling sought by the objection’s proponent. See TEX. R. APP. P.
33.1(a)(1)(A).
Analysis
Following argument in the hearing held outside of the jury’s presence, the trial
court’s ruling was as follows:
THE COURT: I’ll overrule the [hearsay] objection and permit the testimony
under 803(3). I do appreciate the State’s caution [referencing the State’s
intent to avoid testimony relating specific acts of violence between
appellant and the victims].
MR. MURRAY [Defense Counsel]: Judge, may I have a running objection?
14
THE COURT: You may, yes, sir.
MR. MURRAY: And can we ask the Court to limit it just to that she had
fear?
THE COURT: No, it will not be so limited. However, if it gets into
specifics, there might be another objection made.
(emphasis added). From the trial court’s ruling, we conclude that the trial court
overruled appellant’s hearsay objection to testimony that Vicki and Wanda feared
appellant. However, we further conclude that the trial court made no ruling on any
testimony that recounted specific acts that might have led Vicki and Wanda to fear
appellant. In fact, we construe the trial court’s statement as specifically identifying that
any such testimony would require a subsequent objection. Thus, any error in the
admission of testimony relating to specific acts that caused Vicki and Wanda to fear
appellant was not preserved by the objection made outside of the jury’s presence or by
the running objection granted by the trial court.
Thus, we must review appellant’s specific objections made to testimony
regarding specific instances of violence between appellant and Vicki or Wanda.
Appellant complains that the cumulative effect of testimony of specific acts of violence
offered by witnesses Scott, Blackstock, Petit, Calderon, and Butler was sufficient to
violate appellant’s Due Process rights and deny him a fair trial. Scott testified that he
had “knowledge” of physical violence between appellant and Vicki, however, he did not
testify as to any specific instances of violence. Further, appellant made no specific
objection to the testimony that Scott possessed such knowledge. Blackstock testified
that Vicki was afraid of appellant and that her fear was “based on specific events.”
15
Appellant did object to this questioning and the trial court overruled the objection, but
cautioned the State “not to go into any specifics.” Blackstock never identified any of
these specific events. Petit testified that Vicki had revealed things to her that caused
great concern and that Vicki’s fear of appellant was based on “a physical action that had
taken place.” Appellant did not specifically object to Petit testifying regarding this
specific instance of violence between appellant and Vicki. Detective Calderon testified
that the call sheet indicated that appellant had a history of violent behavior. Appellant
objected to this testimony solely on the basis of it being hearsay. Arguably, appellant’s
hearsay objection was sufficient to apprise the trial court that Calderon’s testimony was
exceeding the scope of the Rule 803(3) exception. Finally, Butler testified about a
specific incident when appellant shoved Vicki against a wall. Appellant immediately
objected and the trial court told the State to take a minute and advise Butler not to talk
about the specifics. However, the trial court did overrule appellant’s objection.
Appellant also challenges Butler’s testimony that Butler told Vicki that she needed to do
something before appellant killed her. However, appellant’s objection to this testimony
was that it is speculative, and appellant does not argue on appeal how the trial court’s
overruling of this objection was in error.
After reviewing all of the challenged testimony, at best, appellant has preserved
his objection to Detective Calderon’s testimony that the call sheet indicated that
appellant had a history of physical violence and Butler’s testimony that appellant once
shoved Vicki against a wall. Calderon’s testimony is cumulative of other unobjected-to,
nonspecific evidence that appellant had been violent in the past. See Lindsay v. State,
102 S.W.3d 223, 227 (Tex.App.—Houston [14th Dist.] 2003, pet. ref’d). As a result, the
16
only claimed error that was admitted and preserved for review is the testimony of Butler
regarding the single instance when appellant shoved Vicki against a wall. Assuming,
without deciding, that this testimony was erroneously admitted, it is clearly insufficient to
establish a claim of cumulative error that would justify reversal. Further, in light of the
evidence discussed throughout this opinion, we cannot say that the erroneous
admission of this evidence affected appellant’s substantial rights. See TEX. R. APP. P.
44.2(b).
Consequently, we overrule appellant’s fifth issue.
Sufficiency of the Evidence
By his fourth issue, appellant contends that the trial court erred in not instructing
a verdict in favor of appellant because the evidence of appellant’s commission of the
murders was factually insufficient. By this issue, appellant challenges both the legal
and factual sufficiency of the evidence supporting his conviction. Primarily, appellant
contends that the only evidence linking him to the murders was circumstantial and that
the failure to present any direct evidence of his involvement in the crime, especially in
light of the exacting scientific measures employed in investigating this crime, constitutes
legally and factually insufficient evidence to support his conviction.
Standard of Review
When both legal and factual sufficiency are challenged, we are required to
conduct an analysis of the legal sufficiency of the evidence first and then, only if we find
17
the evidence to be legally sufficient, do we analyze the factual sufficiency of the
evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).
In assessing the legal sufficiency of the evidence, we review all the evidence in
the light most favorable to the verdict to determine whether a 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, 61 L. Ed. 2d 560 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex.Crim.App. 2007). In conducting a legal sufficiency review, it
is assumed that the trier of fact resolved conflicts in the testimony, weighed the
evidence, and drew reasonable inferences in a manner that supports the verdict.
Clayton, 235 S.W.3d at 778. An appellate court may not sit as a thirteenth juror, but
rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a
mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.
1988).
When an appellant challenges the factual sufficiency of the evidence supporting
his conviction, the reviewing court must determine whether, considering all the evidence
in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a
reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).
In performing a factual sufficiency review, we must give deference to the fact finder’s
determinations if supported by evidence and may not order a new trial simply because
we may disagree with the verdict. See id. at 417. As an appellate court, we are not
justified in ordering a new trial unless there is some objective basis in the record
demonstrating that the great weight and preponderance of the evidence contradicts the
18
jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency
must include a discussion of the most important evidence that appellant claims
undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
Appellant argues that we are prohibited from considering inadmissible hearsay
testimony in assessing the sufficiency of the evidence to support appellant’s conviction.
See Gardner v. State, 699 S.W.2d 831, 835 (Tex.Crim.App. 1985). However, the Texas
Court of Criminal Appeals has overruled Gardner and has articulated that inadmissible
hearsay admitted without objection is to be treated the same as all other evidence in the
sufficiency context. See Chambers v. State, 711 S.W.2d 240, 247 (Tex.Crim.App.
1986).5
Analysis
Viewing the evidence in the light most favorable to the trial court’s denial of
appellant’s motion for instructed verdict, as we must in a legal sufficiency review, we
conclude that the evidence was legally sufficient to establish that (1) appellant, (2)
intentionally or knowingly, (3) caused, (4) the deaths of Vicki and Wanda, (5) during the
same criminal transaction. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(7)(A).
Evidence was presented that appellant had a tumultuous relationship with both
his mother and grandmother. Evidence was presented that appellant possessed no
alibi for several hours of the night in which the murders occurred; was placed at the
5
While appellant contends that he objected to much of the hearsay evidence that
was introduced at trial, as discussed in the analysis of the previous issue, neither his
running objection nor his specific objections were sufficient to cover much of the
testimony complained of on appeal.
19
crime scene prior to the discovery of the bodies; appeared to have been freshly
showered when he returned to Wanda’s house to discover the bodies; and, after
discovering the bodies, did not act in a manner consistent with what would be expected
following the discovery of the brutal murder of one’s mother and grandmother.
Immediately after the bodies were discovered, it was observed that appellant had
scratches on his hands and arms and redness on his knuckles. Police determined that
there were no signs of forced entry into Wanda’s home, and evidence was presented
that appellant was the only known person with access to the home. Appellant’s vehicle
contained a black cord that was similar to the black cord found under the body of Vicki.
Evidence was also presented that appellant had solicited a friend to lie regarding
appellant’s whereabouts on the night of the murders.
Considering all of the evidence in the light most favorable to the trial court’s
denial of appellant’s motion for instructed verdict, we cannot say that a rational trier of
fact could not have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. Consequently, we
conclude that the evidence was legally sufficient to support the trial court’s ruling on
appellant’s motion for instructed verdict.
Appellant additionally challenges the factual sufficiency of the evidence to
support his conviction. Appellant’s presentation of this argument is unusual in that
appellant contends that the evidence was so factually insufficient as to constitute
fundamental error when the trial court denied his motion for instructed verdict.
Appellant essentially argues that the evidence was factually insufficient because the
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totality of the evidence presented was circumstantial and no direct evidence was offered
that would place appellant at the scene of the crime.
Looking at the evidence in a neutral light, each of the circumstances indicating
appellant’s guilt identified above remains evidenced in the record. Contrary to
appellant’s contention, 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. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Essentially,
appellant contends that the police’s failure to locate DNA, fingerprint, or other evidence
directly linking appellant to the scene of the crime precluded the trial court or the jury
from finding appellant guilty of the murders beyond a reasonable doubt. However,
considering that appellant had been living at Wanda’s residence at some point prior to
the murders, we suspect that if DNA or fingerprint evidence had been discovered at the
scene of the crime, appellant would simply contend that such evidence proves nothing
more than that he had been in the house at a prior time. Thus, the probative value of
the presence or absence of DNA or fingerprint evidence matching appellant in Wanda’s
house is greatly diminished.
While we agree with appellant that the majority of the evidence presented in this
case is circumstantial, we conclude that this circumstantial evidence was sufficient to
enable the jury and the trial court to rationally conclude that appellant was guilty of the
charged offense beyond a reasonable doubt. See Watson, 204 S.W.3d at 415.
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Because we conclude that the evidence was both legally and factually sufficient
to support the trial court’s denial of appellant’s motion for instructed verdict, we overrule
appellant’s fourth issue.
Conclusion
Having overruled each of appellant’s issues, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Do not publish.
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