Appeal from Comanche County.
Lynn W. Malone, Charles M. McDonald, McDonakd, Harmon & Malone, Attorneys at Law, Waxo, Texas.
Andy McMullen District Attorney, Hamilton, Texas, Garry Lewellen, McMillan & Lewellen, Attorneys at Law, Stephenville, Texas.
The jury convicted Joe D. Bryan of murder*fn1 and assessed his punishment*fn2 at confinement for 99 years and a fine of $10,000. We affirm.*fn3
The jury found that appellant was guilty of murder, on or about October 15, 1985, in Bosque County when he "did then and there intentionally and knowingly cause the death of an individual, Mickey Bryan [his wife], by shooting her with a firearm."
Appellant presents five points of error. First, he argues that the evidence is insufficient. Next, he argues that the trial court erred in overruling his objection to the special prosecutor's jury argument on the ground that it "commented upon appellant's failure to testify." Finally, he argues in three points that the trial court erred in permitting the State to read into evidence his testimony from the prior trial because: (Point Three) it "contained numerous prejudicial statements by the prosecutor"; (Point Four) it "constituted an improper attempt to prove bad character" when appellant's character was not in issue; and (Point Five) its cumulative effect "was such as to deprive him of a fair trial."
The conviction in this case is based upon circumstantial evidence. The rules of appellate review are the same in both direct evidence and circumstantial evidence cases: an appellate court views the evidence in the light most favorable to the jury's verdict; and the evidence is not sufficient unless it is enough to convince a rational fact finder, beyond a reasonable doubt, that the defendant is guilty of every element of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989); Houston v. State, 663 S.W.2d 455 (Tex.Cr.App. 1984). A conviction based upon circumstantial evidence cannot be affirmed unless the proof excludes every other reasonable hypothesis except the guilt of the defendant. Johnson v. State, 673 S.W.2d 190 at 195 (Tex.Cr.App.1984).
We need not discuss all of the evidence from this lengthy trial, but we will summarize enough pertinent testimony to show that it was sufficient to exclude every reasonable hypothesis except appellant's guilt. Appellant was the principal of the only high school in the town of Clifton, and his wife was a teacher in the elementary school. They had been married for sixteen years, and there was no outward indication of any trouble in their marriage. They did not have any children, and they lived by themselves in a house on the edge of town. There were snakes in the area, and they kept a .357 magnum pistol loaded with "snake-shot" in their bedroom.
Appellant drove from their home in Clifton to the Hyatt Regency Hotel in Austin on the afternoon of October 13, 1985, to attend the annual meeting of the Texas Association of Secondary School Principals (TASSP). The telephone records confirm appellant's statement that he called his wife long distance from the hotel at 9:00 p.m. on the evening of October 14. Her body was found the next morning when she did not show up at the elementary school to teach her class. The alarm clock was set for 6:00 a.m., and it had not been turned off. Appellant's wife had been shot three times in the head and once in the stomach. The coroner said that all four wounds indicated that she had been shot at very close range. There was a lot of blood all over the room, and the coroner expressed the opinion that her assailant would have been spattered with her blood. The wounds were caused by small shot such as the ones which would have been fired by the .357 magnum pistol which was missing from their bedroom. The blood spatters on the bedroom ceiling and on the ceiling fan indicated that the fan was not operating when the victim was shot and that the fan was turned on after it was spattered with blood. A pair of appellant's underwear was found in the bathroom trash basket, and the underwear contained moist semen which matched the semen sample secured from appellant. There were no traces of semen in any of the victim's bodily cavities.
Appellant had no alibi for his whereabouts at the time of his wife's shooting. The State's theory of the case was that he slipped out of the hotel, drove home, let himself into the house with his key, shot his wife with the gun which was kept by their bed, cleaned himself up after getting her blood all over himself, changed clothes and shoes, disposed of the gun and the missing jewelry, drove back to his hotel room in Austin, cleaned up, and went to the morning meeting at the TASSP convention.
Appellant appeared to cooperate with the investigating officers immediately after his wife's death. He indicated that some jewelry and about $1,000 in cash which they kept in their room was missing. While appellant's brother-in-law was using the car which appellant had driven to Austin, the brother-in-law discovered a bloody flashlight in the trunk of the car and reported that finding to the Texas Ranger who was in charge of the investigation. The Ranger secured a search warrant and examined appellant's car very carefully. There was no money in the trunk. Before he heard that the Ranger had searched his car, appellant told the local police that he had found the missing money in the trunk of his car. The blood on the flashlight which was found in the trunk of appellant's car matched decedent's blood, and there were small pieces of plastic on the flashlight which matched the small pieces of plastic which were found in the body and which came from the shells containing the "snake-shot."
Appellant then claimed that a Hyatt Regency employee named "Jack Shaw" asked him to help with the investigation of the maids at the hotel by leaving his keys and some valuables on the dresser to see if the maid would take them. An investigation at the Hyatt Regency indicated that they did not have a security employee named "Jack Shaw" and that they would never ask a guest to participate in any investigation of hotel employees. Appellant suggested that someone must have taken his keys, made copies of them, used the duplicate car key in order to drive it from Austin to Clifton, used the duplicate of his house key to let himself into the house, murdered his wife, put the bloody flashlight ...