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 ...