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FREDDA SUE MOWBRAY v. STATE TEXAS (04/12/90)

April 12, 1990

FREDDA SUE MOWBRAY, APPELLANT,
v.
THE STATE OF TEXAS, APPELLEE



On appeal from the 107th District Court of Cameron County, Texas.

Robert J. Seerden, J., Paul W. Nye, C.j., and Fortunato P. Benavides.

Author: Seerden

A jury found appellant guilty of murder and assessed a life "sentence and a fine of $10,000. It also returned a finding that she used a deadly weapon during the commission of the offense. Appellant challenges her conviction by twenty-six points of error. We affirm the trial court's judgment.

By point one, appellant claims the evidence is insufficient to support the judgment. The State's theory was that appellant shot her husband while he slept. Appellant argues that the evidence did not exclude the reasonable hypothesis that the deceased shot himself. Appellant recounts certain evidence favorable to her defense theory that the deceased committed suicide. Specifically, she compares the testimony of three assuming that she and the deceased were positioned consistently with her taped statement.

In reviewing the sufficiency of the evidence, an appellate court views the evidence in the light most favorable to the judgment and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). The jury is the exclusive judge of the facts, of the credibility of the witnesses, and of the weight to be given to their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985).

Direct and circumstantial evidence are equally probative for proving guilt beyond a reasonable doubt. Hankins v. State, 646 S.W.2d 191, 199 (Tex. Crim. App. 1983) (on rehearing) In circumstantial evidence cases, every fact need not point directly and independently to the defendant's guilt. It is enough if the combined and cumulative force of all of the incriminating circumstances warrants the conclusion. Livingston v. State, 739 S.W.2d 311, 330 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L. Ed. 2d 895 (1988); Ramos v. State, 767 S.W.2d 248, 249 (Tex. App.-- Corpus Christi 1989, pet. ref'd).

The deceased was shot in bed at night. The only occupants of the room in which the shooting occurred were the deceased and appellant.

The defense theory was that appellant and the deceased were lying in bed with a pillow barrier between them when appellant saw the deceased's elbow point upward. When she reached to touch it, the gun went off. Appellant made a taped statement about the shooting, and the tape was admitted into evidence. Witnesses to the appellant's statements recalled that appellant indicated that she had used her left hand to reach toward the deceased. The State, however, introduced a crime lab supervisor's analysis of appellant's nightgown showing traces of lead or gunshot residue on the lower right sleeve. That witness, Steve Robertson, conducted tests with the gun found at the scene and opined that the residue was consistent with someone firing that gun.

Estella Mauricio, who was dispatched to the Mowbray residence just after the shooting, testified that she found the deceased, still alive and shot through the head, lying on his left side and covered all the way up to his shoulder. The bullet had entered the right side of his head, exited the left, and wounded his left hand, which was under his head with a pillow between his head and left hand. The right hand was lying across his chest under the covers. There was no blood or brain matter on the right hand and she did not ever see his hand being washed at home or at the hospital. Emergency technician Cavazos also recalled that the victim was completely covered, with only the right side of his face and the top of his head showing, when he arrived, although later the deceased was uncovered. Mauricio testified that he was positioned like a sleeping person, and the deceased's first cousin, Scott Mowbray, testified that the deceased slept in the position in which he was found.

Dr. Dahm, who conducted the autopsy, stated that if the deceased had shot himself, his right hand would have been covered with blood and brain matter. He found no such blood or brain matter on the deceased's right fingers, hand, or forearm. Dahm testified it would be impossible for the deceased to have shot himself and the hand be clean, and concluded that the death was a murder.

Appellant argues that the jury ignored the evidence favorable to her, particularly that of Tom Bevel, who recreated for the jury a scenario consistent with her taped statement and in which she would have received the stain and spatter pattern on her nightgown. However, Bevel conceded that it could be murder, and appellant's theory did not account for the deceased's clean right hand and the gunshot residue on her right sleeve. We hold the evidence sufficient, and overrule point one.

By point twenty-two, appellant contends that her conviction should be reversed because the trial court did not hold a Jackson v. Denno hearing before admitting her taped statement. See Jackson v. Denno, 378 U.S. 368, 376-77 , 84 S. Ct. 1774 , 12 L. Ed. 2d 908 (1964). Defense counsel filed a motion for a hearing on voluntariness before trial, but obtained no ruling on it. During trial, after Olsson testified about how he made the tape, the State offered the tape recorder and tape into evidence. The defense attorney stated, "We have no objection, your honor."

Tex. Code Crim. Proc. Ann. art. 38.22 ยง 6 (Vernon 1979) provides for an independent finding, in the absence of the jury, of the voluntariness of an accused's statement if the question is raised. In Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984), the Court held that art. 38.22 does not require the trial court to hold a pretrial hearing, and stated that a trial court could "wait until the defense makes a timely objection at trial before holding the hearing." Appellant has not shown that she brought the issue of voluntariness to the trial court's attention at any time before the tape was admitted. Thus, the complaint is not properly before us for review. See Taylor v. State, 489 S.W.2d 890, 892 (Tex. Crim. App. 1973); Sanders v. State, 715 S.W.2d 771, 775 (Tex. App.--Tyler 1986, no pet.)

Moreover, absent evidence which raises an issue of voluntariness, no finding on voluntariness is required. Trybule v. State, 737 S.W.2d 617, 621-22 (Tex. App.--Austin 1987, pet. ref'd.) Before the tape was admitted, Olsson testified that he asked to tape appellant's statement and left the tape player in plain view. He said he read her rights to her and she signed a Miranda card. The defense voir dire about the quality and accuracy of the tape because of a tape recorder malfunction raised no voluntariness issue, nor have we found evidence to support a conclusion that the statement was not voluntary in any other testimony. We overrule point twenty-two.

By point twenty-three, appellant claims the trial court erred in denying her motion to suppress evidence seized at her home pursuant to a search warrant. Appellant specifically complains of the use of an insurance schedule at trial, since the State mentioned that insurance could be a motive for the murder. The State replies that the insurance schedule introduced at trial was not the one seized under the challenged search warrants.

Sergio Hernandez, who was business manager for the deceased's car lot, testified that, although she had never talked to him about it before, some six or eight weeks before the shooting, appellant went to the business and asked about what kind of insurance the business had. He showed her a list of insurance policies, including life insurance policies, on which she was the beneficiary. He did not give her the list, and she did not ask for a copy; the interview lasted less than five minutes, and she looked at the list for five seconds or less. The State introduced the list through Hernandez, and did not introduce any other insurance schedule nor connect any with her home, nor show at trial that she possessed any. Thus, the insurance schedule admitted is not shown to be the same one seized. The only item which appears on the "return and inventory" and was introduced at trial was the brown wooden switch box (electrical) (SX 17). The existence, appearance, or position of the box was not at issue. It was introduced without objection. Appellant's taped statement mentions that the deceased kept the gun in the box. The housekeeper had seen the gun there and believed the deceased normally slept on the side by the box. That night appellant and the deceased had changed sides of the bed. Both housekeeper and Scott Mowbray testified the box controlled lights. Introduction of the actual box was cumulative of testimony and not relevant to the issues at trial. Any error was harmless. We over rule point twenty-three.

By points two and three, appellant complains of the prosecutor's argument at the guilt phase of the trial, alleging improper comments on appellant's election not to testify and on her exercise of her right to counsel. Appellant's counsel voiced no objection to either argument, nor did he request an instruction to disregard. Unless an argument is so inflammatory that an instruction to disregard cannot alleviate its prejudicial effect, the failure to request an instruction to disregard waives error. Parr v. State, 606 S.W.2d 928, 931 (Tex. Crim. App. 1980).

To determine whether an improper argument is incurable error, we review the entire record to ascertain the probable effect of the argument on the minds of the jurors. Crowe v. State, 400 S.W.2d 766, 768 (Tex. Crim. App. 1966); Medrano v. State, 658 S.W.2d 787, 793 (Tex. App.--Houston [1st Dist.] 1983, pet. ref'd). We also examine the alleged error in context of the entire argument. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Henson v. State, 683 S.W.2d 702, (Tex. Crim. App. 1984).

Proper jury argument encompasses one of the following areas: summation of the evidence, reasonable deduction from the evidence, answer to the opposing counsel's argument, or plea for law enforcement. Gaddis, 753 S.W.2d at 398; Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987). Counsel is allowed wide latitude in drawing inferences from the evidence so long as they are fair, legitimate, and offered in good faith. Gaddis, 753 S.W.2d at 398. The invited argument rule permits response to opposing counsel's argument, outside the record, except that the response may not exceed the scope of the invitation. See Pyles v. State, 755 S.W.2d 98, 116 (Tex. Crim. App. 1988), cert. denied 488 U.S. 986, 109 S.Ct. 543 , 102 L. Ed. 2d 573 (1988); Albiar, 739 S.W.2d at 362, Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981); see Rushton v. State, 698 S.W.2d 451, 457 (Tex. App. --Corpus Christi 1985, pet. ref'd), cert. denied 484 U.S. 862, 108 S. Ct. 178, 98 L. Ed. 2d 131 (1987).

Counsel may paraphrase the court's charge, and reiterating the accused's right not to testify is not in derogation of his rights but in support of them. Short v. State, 511 S.W.2d 288, 291 (Tex. Crim. App. 1974), cert. denied 420 U.S. 930, 95 S. Ct. 1132, 43 L.Ed.2d 402 (1975); Neaves v. State, 725 S.W.2d 785, 787 (Tex. App.--San Antonio 1987), aff'd, 767 S.W.2d 784 (Tex. Crim. App. 1989). An accused's prearrest silence is a constitutionally permissible area of inquiry. Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988). When invited, a prosecutor may refer to an accused's failure to testify. Zertuche v. State, 774 S.W.2d 697, 699 (Tex. App.--Corpus Christi 1989, pet. ref'd).

Point two addresses this argument:

And what does the defendant say ? First of all, no one has talked to you about this, but part of the charge says that our law provides that the defendant may testify in his own behalf, however, it is his privilege. And it goes on to say that the defendant did not testify and you cannot consider that. I know we all ...


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