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BENNIE RAY DUPNIK v. STATE TEXAS (05/26/83)

May 26, 1983

BENNIE RAY DUPNIK, JR., APPELLANT,
v.
STATE OF TEXAS, APPELLEE



On appeal from the 319th District Court of Nueces County, Texas.

COUNSEL

Frank M. Garza, Corpus Christi, Texas, FOR APPELLANT.

Grant Jones, Corpus Christi, Texas, FOR APPELLEE.

Noah Kennedy, Associate Justice.

Author: Kennedy

NOAH KENNEDY, Associate Justice.

This is an appeal from a jury trial wherein appellant was convicted of capital murder. Appellant, a juvenile, was sentenced by the court to life in prison, pursuant to the mandatory provisions of Tex.Penal Code Ann. 8.07(d) (Vernon Supp. 1982-1983). The State's case was based on circumstantial evidence. Appellant brings ten grounds of error, one of which challenges the sufficiency of the evidence, which we will address first.

The indictment alleges in pertinent part that on or about May 25, 1978, appellant did: "then and there while in the course of committing robbery, intentionally cause the death of Gladys Fowler, by beating her with a wooden rod...."

The general rule for reviewing the sufficiency of evidence is that it will be viewed in the light most favorable to the jury verdict. However, a different test is applied when the verdict is based on circumstantial evidence; the evidence is insufficient if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused. Sewell v. State, 578 S.W.2d 131, 135 (Tex.Crim.App. 1979). In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged. Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App. 1983); Sewell, supra at 135.

A summary of the relevant facts is in order. We note from the outset that less than one hour elapsed between the time the victim was last seen alive and the time when the appellant was apprehended.

The deceased, Gladys Fowler or "Shorty" was less than five feet tall and seventy-two years old at the time of her death. She had owned and operated Shorty's Place, a bar and pool room in Port Aransas, for about 30 years.

A tourist, Greg Nelson, testified that he went into Shorty's Place at 5:20 p.m. on May 25, 1978 to drink a beer. Shorty was the only one there. He shot a game of pool and then sat at the bar and visited with Shorty. He testified that three people came in before he left at 5:45 p.m.: a beer distributor, a large man with a dog (later identified as Shorty's son-in-law) and the appellant. The appellant was the only one remaining when Nelson left at 5:45 p.m. to go pick-up two friends who were arriving at 6 o'clock on a nearby charter fishing boat. Nelson and his two friends returned to Shorty's Place at 6:15 p.m. at which time they found the deceased lying on the floor in a pool of blood. They immediately went next door and called the police.

Nelson testified there was a brown Ford (Shorty's vehicle) parked in front of Shorty's Place when he left at 5:45 p.m. but he did not recall seeing it when he returned at 6:15 p.m. He further testified the appellant was wearing a short sleeved t-shirt and had a tatoo on his left arm, which was confirmed by a courtroom demonstration. He made an in-court identification of appellant.

A. I. Blackard who owned the Shifting Sands restaurant, across the street from Shorty's Place, testified that the appellant came into his establishment at about 6 p.m., looked around and then went into the bar and drank a beer. He described appellant as wearing a white t-shirt, a brown belt, blue jeans and a cap with "Woody's Boat Basin" written on it. Finally, he observed appellant leave his place of business at around 6:05 p.m. and walk up the steps to Shorty's Place.

Mike Fisher, a bartender at the Shifting Sands testified that appellant arrived at 5:45 p.m. He served appellant a beer, and appellant left at 6:05 p.m.

Troy Bradford, 13, was riding in the back of his father's pick-up truck on May 25, 1978 when they passed by Shorty's Place in route to the Fishermans Wharf. Bradford observed a "real sweaty" individual with curly blondish hair getting into the deceased's vehicle which was parked in front of Shorty's Place. Bradford identified appellant as the person he saw get into the car and back out "real fast", almost hitting the truck in which Bradford was riding.

Lee Motes, police dispatcher, testified that she received the initial call regarding this incident at 6:16 p.m. and a call at 6:30 p.m., telling her that the subject (appellant) was in custody.

Officer Neil Motes was the first officer on the scene. He immediately noticed Shorty's car was missing and put out an "all points bulletin." He had known Shorty since 1950 and had never seen anyone else drive her car.

Larry Notley and his wife were traveling north on Park Road 53 when appellant, with a brown LTD parked on the side of the road, walked into the middle of the highway waiving his arms, "flagging down" the Notley's. The Notleys stopped beside appellant's vehicle which appellant later explained was his mother's car. Appellant wanted to use the Notley's jack because his wasn't working. Mr. Notley got out of his car, opened the trunk, and while digging to get the jack out of the trunk appellant bumped him out of the way and finished digging the jack out himself. Notley described appellant as "in a hurry", "nervous", "sweating" and "jumpy". Because appellant's hands were shaking so much, Notley did the majority of the work in changing the tire.

Notley testified that he observed appellant remove his t-shirt and throw it on the ground. Appellant had blood on his hands, arms, feet, face and blue jeans. Notley further observed a small nick or cut on appellant's face, but not the type cut that would produce the amount of blood that he saw on appellant.

Mrs. Notley testified that because appellant was "so sweaty and covered in blood," she inquired as to the source of the blood. Appellant responded that the jack had hit him. She then offered him a napkin with some antiseptic on it. Both Notleys testified that when appellant heard sirens, he threw the napkin in the air and ran to Shorty's car. The Notleys stayed in their car until the appellant was caught and in custody.

Officer Perkins testified that he was notified by radio at 6:25 p.m. that Shorty's car, the brown LTD, was seen travelling north on Park Road 53. Pursuant thereto, he arrived at Shorty's car at 6:30 p.m. parked beside the road. Upon seeing the officer, appellant ran to Shorty's car, got in and started the car. The officer fired a warning shot in the air. Thereafter, appellant took off down a caliche road toward the dunes. The officer fired three times at the tires of the vehicle, blowing out the left rear tire. The officer then pursued in his vehicle. Appellant's car slid to a stop at the sand dunes where he jumped out and started running into the dunes. After chasing appellant on foot for over 400 feet the officer caught and handcuffed the appellant.

Officer Titus investigated the scene at the bar. He found among other things, the cash register empty and the base of a pool stick imbedded with hair, blood and skull fragments. He found a plate of scrambled eggs under the deceased and the burner on an electric stove in the back of the bar turned on. He testified he observed blood on the cash register and on the back door. The floor, walls, and furniture surrounding the body were splattered with blood.

Dr. Rupp, the medical examiner, testified that death was a direct result of a traumatic head injury, consistent with being struck with a pool stick. He opined that the deceased was struck three times, once across the chest and twice on the head as she was falling down. Either of the blows to the head could have been fatal.

Janice Hoskins testified that both the victim and appellant had type A, 1-1 PGM factor blood. Therefore the type A, 1-1 PGM factor blood, found on appellant's t-shirt, blue jeans, cap, and the pool stick could have been from either person. She confirmed the presence of human blood on the thongs worn by appellant, on the back door and the lock.

Rose Smithey, the deceased's daughter, owned and operated the Rod and Gun Club next door to Shorty's Place. She testified that she saw her mother at least once a day. Her mother always parked her car in front of Shorty's Place, always locked the car and no one drove it except one employee, her mother and herself. The keys to the car were always kept in her mother's purse or on the back bar. Her ...


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