Appeal from Eastland County
Appellant was convicted on a plea of not guilty of murder with malice by a jury; the punishment, life.
The indictment charged in proper form the murder with malice by appellant, on March 15, 1971, of Tona Worthington in Taylor County. The trial was held in Eastland County on change of venue on October 11 to 26, 1971.
By his last ground of error appellant challenges the sufficiency of the evidence. The record contains 2002 pages. The evidence was circumstantial. The court charged on circumstantial evidence and on alibi. The defendant testified and denied the offense and sought to explain away the incriminating circumstances. He and his one other witness raised the issue of alibi.
Tona Worthington, a ten year old girl, disappeared from the Reagan Elementary School in Abilene after school on March 15, 1971. On the next day, about 3:00 P.M., her body was found stuffed in a culvert in the north part of Taylor County. She had been raped and strangled to death.
It is necessary to demonstrate the sufficiency of the evidence, which we now do by setting out the salient facts shown on the trial.
Creel customarily drove a red Volvo sedan covered with decals or flowers, and when seen always had his German Shepherd dog with him. The Volvo was registered in the name of Creel and his wife; the license plate number for 1970 being DGV 307 and for 1971 it was DLB 67.
Mrs. Bob Harris testified that she saw Creel near the Reagan Elementary School on two occasions on March 15, 1971, in the red Volvo, with his dog. About 4:30 she saw him talking to Elizabeth Tomas and Cindy Mann, two pupils about Tona's age.
These two girls testified to seeing Creel on March 15, 1971, the day Tona disappeared, near the Reagan School, and he asked them questions about Tona, how old she was, how she dressed, where she lived. The school coach told about Tona having left to go home about 4:15 P.M. on the fatal day.
Charlotte Harris, a friend of Tona's, told about playing ball with her about 4:15, during which Tona gave her some bubble gum, and when she reached in the sack Tona had three "Snicker" bars. Tona walked west on Hartford Street toward her home.
Dorothy Faye Johnston testified she saw a small, red foreign automobile just east of the Reagan School on the afternoon of Tona's disappearance, with what appeared to be two people in it, which pulled up close to a young girl who was walking away from it. The witness stopped and the automobile drove away.
Ida Belle Coffee, a neighbor, said she saw Tona about half way between the school and her home on March 15, about 4:35 P.M.
J. C. Hinojosa, a sergeant at Dyess Air Force Base near Abilene, said he left the base for home about 5:00 P.M. on the 15th; that as he proceeded down the street near the Elm Creek bridge, across the same creek that runs between the Reagan School and the Worthington home and just north of the school, he observed a small, red foreign automobile parked facing north on a small dirt road which leads from a wooded area; that the automobile, to the best of his memory, was a Volvo; that the car was driven by a Caucasian male, and in the middle of the front seat he saw the head of a female child with her head bent slightly forward. The car then drove away at a high rate of speed. Hinojosa, being an artist, did a water color painting of what he saw, which was admitted in evidence as State's Exhibit No. 58.
Oscar Villalobos, Pedro Rocha and Bonifatio Valdez testified in substance that on Monday, March 15, 1971, they were on the Old Anson Road in the north part of Taylor County between 5:30 and 6:30 P.M. and saw a red foreign automobile being driven in an easterly direction, a white male driving with a dog on the passenger side. The driver had light hair and dark framed glasses, and the dog was a German Shepherd. The red car followed that of these witnesses and then they lost sight of it where another road intersected the road upon which they were traveling. This location was described by other witnesses as being about 1 1/2 miles from the spot where Tona Worthington's body was found the next day.
Leonard Jefferson testified that on the same day, at about 6:15 P.M., he was driving with his wife and children on the Old Anson Road and a small, red foreign car, being driven by the appellant, whom he identified on the trial, passed him from the rear. He later came upon that same car parked and appellant had the hood of his car and the trunk lid raised. This location is just to the east of the spot, less than one mile, where the body of Tona Worthington was found the next day. Jefferson's wife corroborated his testimony.
Betty Ann Barnes, daughter of Jefferson and wife, testified that she was with her parents on this occasion; that she saw a German Shepherd dog in the car; that appellant was the man looking under the hood of the car, and that there was a girl's coat with big pockets and buttons on the front seat of the little red car, the door being open. She identified the coat of Tona Worthington which was admitted as State's Exhibit No. 63 as the coat she saw in appellant's car. This coat was found in the culvert where Tona Worthington's body was found, and was identified by her mother as being the coat Tona was wearing when she disappeared on March 15, 1971.
There was testimony from the mother of Tona about her disappearance and their frantic search for her, and how on a previous day Creel's small red car had pulled into her driveway where Tona and her two sisters were playing, and how the car sped away when she went out.
Appellant denied to Sergeant Sanders, of the Abilene Police, that he had ever talked to Tona, but admitted talking to two small girls near the school. He also denied to Bill Davis that he had ever seen Tona, and when confronted by Elizabeth Tomas in Davis' presence, denied talking to her about Tona.
Leonard Dodgen of the Abilene Police testified as to the red Volvo automobile used by appellant, covered with decals or flowers; that he flashed his light into this car about 2:30 or 3:00 A.M. on the 16th of March and saw extremely fresh blood on the back seat and a bedspread there. He was present at the culvert where the body of Tona was found stuffed in a culvert, with a bundle of baling wire stuffed in the end of the culvert. He recovered a large quantity of animal hair and "haygrazer," a feeding substance, on the clothing and hair of the deceased child, and clothing worn by her, including the coat previously mentioned. The underside of appellant's vehicle was found to contain "haygrazer."
Dr. B. B. Trotter, a medical doctor and pathologist, performed the autopsy and attributed Tona's death to strangulation, but could not determine the type of instrument used. He described other injuries which caused a great deal of bleeding, but were not contributory to her death. He said the female parts of the child had been penetrated, and that vaginal smears and the tests thereof indicated that a male who had had a vasectomy had engaged in sexual intercourse with the child. He found partially digested food in the gastrointestinal tract, particularly corn and one peanut. Peanuts were shown to be a main ingredient of "Snicker" bars. State's Exhibit No. 126 was popcorn found in appellant's red Volvo. Dr. Trotter sent samples of the vaginal swabs to Dr. Ruth Guy, a member of the staff of Southwestern Medical School in Dallas, for testing.
Dr. Guy, who qualified as an expert, testified that she could determine the blood type of a person from vaginal smears, and that if the evidence showed the person from whom the swabs were taken was type "O" blood, then a person with type "A" blood had intercourse with her. The record shows that Tona Worthington was type "O" and appellant is type "A".
Col. Billy Gant, M.D., of the Dyess Air Force Base, testified that the medical records of appellant, who was a soldier there, showed that he had a vasectomy performed in 1964; that he was blood type "A"; and that a person upon whom a vasectomy had been performed could engage in sexual intercourse and would emit seminal fluids but would not emit sperm.
After Lt. W. T. (Bill) Davis, of the Abilene Police Department, was at the location where Tona's body was found on March 16, 1971, then he went to the Live Oak Trailer Park near Dyess Air Force Base, arriving about 5:10 P.M., and observed appellant drive up in a red Volvo sedan with flower and circle decals all over it. A photograph of the car was State's Exhibit No. 1, which showed the flower and circle decals. Lt. Davis then impounded the vehicle.
After a hearing in the absence of the jury, the court overruled objections and admitted in evidence items removed from the vehicle, photographs of the car and of appellant. Many other exhibits, numbering to a total of 135, were admitted in the record.
It was shown that Tona Worthington's coat had type "O" blood on it; that the bedspread taken from the rear seat of appellant's red Volvo had human blood on it which did not respond to testing procedures; that type "O" human blood was on the coat and blouse worn by Tona; that type "O" human blood was on the trunk lid of appellant's Volvo and on his blue tool box found in the trunk of the car; that there were type "O" human blood stains on the floor mat from the rear seat area of the Volvo; and that the trunk mat of that car was missing and the floor was sticky and clean as though the mat had been recently removed.
Dog hair was found on the bedspread, on Tona's coat, skirt and blouse, and it was shown by the analysis of a competent expert to be similar in color and structurally identical to hair from appellant's German Shepherd dog which he had in the car with him, and dissimilar to the hair of the Worthington dog.
Handcuffs and a piece of a bicycle tire were also found in the Volvo automobile and were admitted.
Several girls and one eleven year old boy, some of whom positively identified appellant and all of whom described him and said he was driving a small, red foreign car covered with decals and flowers and had a German Shepherd dog, testified to efforts on his part to entice them into his car; to his saying to them, "Hey, Baby," and following them near nightfall. Some of them got his car number, which was the same shown to belong to the red Volvo registered to appellant.
We are not able within a reasonable compass to detail the entire evidence, but after reviewing the same hold it to be sufficient.
The first ground of error urged by appellant is that the search of the Volvo automobile belonging to appellant and the fruits thereof were in violation of his rights under the Fourth Amendment to the Constitution of the United States and Article I, Section 9, of the Constitution of Texas.
In response to objections, the court held a hearing out of the presence of the jury. Lt. W. T. (Bill) Davis, of the Abilene Police Department, testified that about 5:10 P.M., after the body of the dead girl had been found, he went to the home of appellant just as he drove up in his Volvo, arrested him without warrant or search warrant, and searched the automobile, which resulted in the recovery of many items afterwards introduced in evidence.
The officer testified in explanation of his belief as to whether or not the circumstances permitted time in which to obtain a warrant:
"I knew in my own mind at that time that the District Attorney's
office was closed and the Justice of the Peace office was closed,
and I was afraid that any delay would cause the destruction of
any or all of the evidence that might pertain to that automobile."
He further stated that in his opinion the vehicle was an instrumentality used in the commission of the crime.
Lt. Davis then related the information that he had which formed the basis for his belief that the appellant was responsible for the death of Tona Worthington. These were as follows: (a) an admission on the part of appellant that he had been in the vicinity where the small girl had last been seen alive; (b) that at such time he had his German Shepherd dog with him; (c) that when the body of Tona Worthington was found her clothing was covered with animal hair; (d) that the vehicle of appellant was observed to have what appeared to be fresh blood in the back seat on the night of the same day the young girl was reported missing; (e) the body of Tona Worthington was covered with blood; (f) that appellant, when confronted by a young girl witness, denied that they had previously talked about the deceased girl, when they had; (g) that the appellant had previously been charged with a similar crime while stationed in Germany, involving an eleven year old girl.
The legal principles with which we are concerned are tersely stated in the following quotations:
"Probable cause for a search exists where the facts and
circumstances within the knowledge of the officer on the
scene and of which he has reasonably trustworthy information
would lead a man of reasonable caution and prudence
to believe that he will find the instrumentality of a crime
or evidence pertaining to a crime." Brown v. State, 481 S.
W.2d 106; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 20 L. Ed. 2d 538, 88 S. Ct. 1472, (1968); Brinegar v. United
States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949);
Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69, 69 L. Ed. 543
"* * * Assuming the existence of probable ...