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Nisbett v. State

Court of Criminal Appeals of Texas

June 27, 2018

REX ALLEN NISBETT & GEORGE DELACRUZ, Appellants
v.
THE STATE OF TEXAS

          PETITIONS FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS WILLIAMSON AND TRAVIS COUNTIES

          OPINION

          KELLER, P.J.

         Appellants Rex Allen Nisbett and George Delacruz were convicted of murder in unrelated trials. Although the cases are factually unrelated, there are many factual similarities between the two, including that, in each case, the victim's body and the murder weapon were never recovered. In Nisbett's case, the court of appeals held the evidence to be insufficient to support the conviction and rendered a judgment of acquittal. In Delacruz's case, a different (but overlapping) panel of that court affirmed the conviction.[1] We granted review and consolidated these cases to address the appropriate analysis when the victim's body and the murder weapon are not found. We ultimately hold that the evidence was legally sufficient to support both convictions. Consequently, we reverse the court of appeals's judgment in Nisbett's case and affirm the judgment in Delacruz's case.

         I. BACKGROUND

         A. Nisbett

         Nisbett and his wife Vicki had a troubled relationship and were getting a divorce. Vicki had moved to an apartment with their three children, but she allowed Nisbett to live with them during the days leading up to Christmas of 1991. On December 14, Vicki had plans to attend a company Christmas party with a co-worker. Vicki and Nisbett argued about Vicki going to the party, and at some point during the altercation Nisbett choked her. Vicki did not meet the co-worker as she had planned to do, and she never showed up at the party. In fact, after December 14, 1991, Vicki was never seen or heard from again. Nisbett had previously made statements suggesting a wish to murder his wife, he engaged in suspicious activity and made suspicious statements to law enforcement and others on or after the date of Vicki's disappearance, he wrote a check on Vicki's bank account after her disappearance, there was circumstantial evidence linking him to Vicki's car after her disappearance, and there was physical evidence indicating that Vicki had been killed. Her body, however, was never recovered, and law enforcement never located a possible murder weapon.

         We set forth the facts developed at trial in further detail below.

         1. Nisbett and Vicki's Troubled Relationship

         Nisbett and Vicki were high school sweethearts. They married shortly after high school and they had three sons together. Around ten years later, on November 15, 1991, Vicki filed for divorce and moved with the children to a new apartment. Nisbett opposed the divorce. He wanted to stay near the boys during the holidays, so Vicki allowed him to stay with them, with the understanding that it was a temporary situation and that she was still moving forward with the divorce.

         Jerry Fryer, the Nisbetts' pastor, testified that he had developed a relationship with Nisbett and Vicki through the Trinity Christian Center and that part of his ministry included helping couples who were experiencing difficulty in their relationships. Fryer had been counseling Vicki and Nisbett together, and he also counseled Vicki individually. During his last meeting with Vicki, two or three days before she disappeared, she was crying and appeared to be "extremely fearful." She declined Fryer's offer to help arrange a different place for her to stay during this troubled period.

         2. Nisbett's Statements Suggesting Desire to Murder Vicki

         Nisbett once told Vicki's brother that he would kill Vicki before he let her divorce him and take his three boys. Nisbett told a co-worker that he had caught his wife cheating on him and thought about killing her, but "that wouldn't be the Christian thing to do." Nisbett had also previously gone to his brother Mike's property with Vicki's brother Mark. Nisbett showed Mark excavation holes that had been dug and said, "You could throw a body in there and no one would ever find it."

         3. Suspicious Circumstances on the Day Vicki Disappeared

         On Saturday, December 14, 1991, Vicki had plans to attend her company Christmas party with co-worker Julie Coen Tower. Tower spoke with Vicki several times throughout the day to confirm their plans. When Tower first called Vicki at around 2:30 p.m., she overheard Nisbett and Vicki arguing. Vicki was agitated and upset, and she explained that she wanted to keep her plans with Tower but that she was arguing with Nisbett because he did not want her to go to the party. When Tower called a few hours later, at 5:00 p.m., the arguing had not abated. Vicki told her that Nisbett had choked her and left bruise marks on her neck and throat. Vicki sounded "pretty hysterical" during that phone conversation, and Tower told Vicki to get her stuff and come to Tower's apartment immediately and they could get ready for the party there. When Vicki failed to show up after thirty or forty-five minutes, Tower called her again. Nisbett answered the phone and said that Vicki had just left and was headed to the party or to Tower's place. Thirty minutes later, around 6:00 or 6:30 p.m., after Vicki still had not arrived, Tower called again. This time, Nisbett told Tower that Vicki had told him that Tower had "slowed her down a little bit and she just went ahead and went straight to the party."[2] Vicki was not seen at the Christmas party.

         Wayne Castleberry also spoke with Vicki on that Saturday. Wayne had met Vicki at a local nightclub, and they had exchanged numbers. They later met for lunch and talked during the week on the phone. Vicki had explained to Wayne that she was going through a divorce but would like to see more of him after Nisbett moved out. When Wayne called Vicki's apartment the afternoon of December 14, Nisbett picked up another phone extension to eavesdrop. In a harsh tone, Nisbett accused Vicki of talking about him and told her to hang up the phone. Vicki's demeanor changed and she responded suddenly with, "I have to get off the phone," and hung up. Wayne and Vicki had planned to meet after the Christmas party, but he never heard from her again.

         Morris "Bubba" Smith lived in the same apartment complex as Vicki with his sister, Lana Faye Reed. Bubba recalled that Nisbett came over late one afternoon in December and asked to borrow his car, a 1969 Nova. Nisbett also asked Bubba to watch his three boys. Nisbett returned the car to Bubba the next morning, but it was damaged-there was damage to the chrome rims around the headlights and "the trunk lock was knocked out."[3] Bubba could not recall the exact time or date that Nisbett borrowed his car, but his sister Lana remembered because she rented movies for the children when they were asked to babysit. Lana corroborated these details by providing investigators with a receipt for the movie rentals dated December 14, 1991. Bubba had never babysat for the boys before.

         Between 9:30 and 9:35 p.m. on December 14, a police officer saw a car traveling northbound on South Bell Road (also known as highway 183) in Cedar Park. The car was traveling slowly in the left lane, so the officer ran the license plate number. The license plate was from Vicki's car. The officer was going initiate a traffic stop, but he received a more serious call from dispatch to which he needed to immediately respond. The location where the car was seen was between where Vicki lived when she disappeared and where she and appellant used to live-Liberty Hill-before Vicki filed for divorce.

         4. No Sign of Vicki after the Day She Disappeared

         On Monday, December 16, Vicki did not show up for work. Her unexplained absence concerned her supervisor, Sheila Vanderwood, because it was out of character for Vicki to miss work without calling in. When Vanderwood called Vicki's apartment, Nisbett picked up the phone and said that he had not seen her since she left for the party. Vanderwood told Nisbett that she intended to report Vicki missing. Shortly after she did so, Nisbett also reported Vicki missing.

         When Officer Proctor arrived at Vicki's apartment to file the missing persons report, two days after she disappeared, her apartment was immaculately clean. This was uncharacteristic of Vicki's apartment, which was usually cluttered and in a state of disarray, with things strung around, in a way that is normal for a home with children. All of Vicki's personal effects were still in her bathroom, which led Officer Proctor to believe that she had not left town.

         None of Vicki's family members ever saw or heard from her again, nor did anyone at Vicki's place of employment. After December 14, Vicki did not write any checks or withdraw any money from her bank account. She did not renew her driver's license when it expired. The Department of Public Safety's Missing Persons Clearinghouse pored through various databases looking for any electronic evidence that Vicki was still alive and could find none. No activity involving her social security number could be found. There were no vehicle registrations, no phone bills, and no municipal utility bills connected to her. In addition, Vicki's fingerprints, dental records, and DNA profile were in national databases, and no hits were received on any of these. At the time of trial, the Clearinghouse had been actively searching for Vicki, alive or dead, for over 22 years.[4]

         There was also testimony from Vicki's mother, pastor, and a co-worker that Vicki was a good mother who would not abandon her children.

         5. Nisbett's Suspicious Behavior and Statements to Law Enforcement

         The morning after the Christmas party, Nisbett called Tower and asked where his wife was. Tower responded, "You tell me. What did you do with her?" Nisbett hung up.

         Nisbett did not contact Vicki's mother, Carol Johnson, for several months after Vicki disappeared, and he did not allow her to spend time with her grandsons until seven or eight months later. He then limited her visits and exposure to the boys-not allowing her to spend time alone with them. This was a significant departure from the relationship Carol had enjoyed with her grandsons before Vicki disappeared. Nisbett explained that he needed to monitor the visits because he needed to "protect himself."

         Vicki's apartment was designated a crime scene in January of 1992. Chief Richard Elliott told the apartment complex manager, Lori Johnston, that he suspected foul play at Vicki's apartment, and she gave Elliott consent to investigate. Nisbett showed up twice while investigators searched Vicki's apartment. He first arrived at 6:30 p.m. and wanted to know what the investigators were doing. Elliott explained that they were looking for evidence in the master bedroom. Nisbett assured everyone that Vicki was ok-that she had just run away-and suggested that the investigators were wasting their time. Chief Elliott testified that, although it was cold in January, Nisbett was visibly sweating and appeared to be "extremely nervous." Nisbett returned later that evening at around 9:30 p.m. to inquire about what the investigators discovered. Elliott told Nisbett that he would have a preliminary report from the Crime Lab the next day, and he invited Nisbett to come to his office at the station then to go over all the information and his theory about what happened to Vicki. Nisbett did not show up at Elliott's office the next day. Instead, an attorney called Elliott to say that Nisbett would not be showing up, and he asked Elliott to refrain from speaking to Nisbett.

         Further into the investigation, Elliot arranged for Vicki's mother to get a message to Nisbett that investigators had found Vicki's body. Elliott's hope was that this news would spook Nisbett into some sort of action that would lead them to evidence of Vicki's whereabouts, or perhaps the remains of her body. Elliott set up unmarked patrol cars and surveillance around Nisbett's apartment and waited for Vicki's mother to give Nisbett the message. Elliott's team watched Nisbett come outside of his apartment two times and walk around in the parking lot for a few minutes before going back inside. Nisbett was picked up by a female, and she drove him up Highway 183. They went down a road that had several large wooded areas, and they finally arrived at Blockhouse Creek Elementary School. Elliott testified that he later searched some of those areas with cadaver dogs, but the wooded area was enormous, and the search was not fruitful.

         After Vicki disappeared, Nisbett gave various stories about where he thought Vicki might be. He initially told investigators that he believed Vicki had run off with another man because she had done so on other occasions. Later into the investigation, however, he stated that he thought Vicki was visiting a girlfriend in Galveston. In the days after Vicki's disappearance, Nisbett told Vicki's mother that he did not know where Vicki was. Nisbett claimed that he had hired a private investigator for $30, 000 to locate Vicki, but he never provided the investigator's name or was able to confirm that he had actually hired anyone. In April of 1992, when notorious serial killer Kenneth McDuff made the news in Texas as a possible serial killer, Nisbett approached law enforcement to share his belief that McDuff must have been responsible for Vicki's disappearance. Chief Elliott testified that there were no leads or evidence to support a theory that Kenneth McDuff was linked to Vicki's disappearance.

         Nisbett initially denied having any physical altercation with Vicki on the evening of her party but later told investigators that he pushed her away after she initiated a physical altercation. He also told investigators that he stayed at home with the kids the entire night Vicki disappeared, but this statement was contradicted by his neighbors' testimony that they babysat the kids and watched movies while Nisbett borrowed Bubba's car.

         6. The Check Nisbett Forged and Vicki's Car

         Five days after Vicki's disappearance, Nisbett forged Vicki's signature on one of her checks to pay for gasoline. The check number was 698, and Vicki's bank account indicated that this check had been written out of sequence with other checks that Vicki had previously written on the account. Nisbett appeared to be surprised to learn that investigators were monitoring Vicki's checking account, and he admitted that he had signed the check with Vicki's name. This check was the only check that posted to Vicki's account after she disappeared.

         When the sheriff's office released the license plate number of Vicki's missing car in an attempt to locate it, Nisbett called to ask why and seemed to be "a little upset and concerned about that." About two months after Vicki disappeared, police found the car in an HEB parking lot. There was testimony that, before the car was recovered, it-or a car that looked like it-had been seen intermittently at the HEB parking lot.

         Even though Nisbett's name was listed on the vehicle registration, he refused consent to search the car. When officers finally did search it, they found Vicki's checkbook. Investigators noted an out-of-sequence check missing from the checkbook that was later confirmed to be the same check that Nisbett used to buy gas.[5] Investigators also discovered that the car's interior dome light had been removed, disabling any automatic light function when the doors opened.

         7. Vicki's Blood in the Apartment and Appellant's Bloody Handprint

         Forensic investigators initiated a search of Vicki's apartment five weeks after she disappeared, when Nisbett was evicted. A serologist observed stains on the carpet and on the sheetrock on the walls. The stains were visible to the naked eye, but it was not possible to determine what the stains were just by looking. The results of a chemical test performed on the stains confirmed that they were human blood.[6]

         The serologist also sprayed luminol[7] across the master bedroom and discovered what appeared to be blood stains and drag marks. Investigators pulled up the carpet and discovered a larger concentration of blood that had soaked into the padding. Using the same technique with the luminol spray, investigators discovered what appeared to be a handprint, in blood, on the wall next to a light switch. The investigators excised the part of the sheetrock with the bloody handprint and cut out sections of the bloody carpet and padding, and sent the evidence to other laboratories for DNA and fingerprint testing.

         The bloodstains on the wall in Vicki's bedroom and on the carpet and carpet padding in the bedroom closet were determined to be made of Vicki's blood.[8] The bloody handprint on the wall was also determined to be made from Vicki's blood.

         Chief Elliott executed a search warrant in 1992 to procure sample evidence of Nisbett's hair, blood, and finger and palm prints. Nisbett told the officers that, regardless of the warrant, he would not voluntarily give them any samples-they would have to obtain the evidence by force. Elliott responded that they would oblige Nisbett, but after he explained the consequences of a physical altercation, Nisbett cooperated and allowed investigators to take the samples. Latent print specialists determined that the bloody handprint on the sheetrock matched Nisbett's prints.

         B. Delacruz

         Delacruz and his wife Julie had a troubled relationship and were getting a divorce. Julie had moved out of Delacruz's home, but she went there to pick up their daughter on March 26, 2010. She was never seen or heard from again. Electronic evidence indicates that Delacruz deviated significantly from his usual routine on the day Julie disappeared, that he possessed Julie's cell phone, that he used her credit card, and that he fabricated text messages and social media posts purporting to be from Julie. Delacruz had made statements disparaging his wife, and he engaged in suspicious activity and made suspicious statements to law enforcement and others on and after the date she disappeared. There was also evidence that he dug a hole designed to bury a human body, that Cadaver dogs alerted near this hole, and that something had been burned near the hole. Julie's body, however, was never recovered, and law enforcement never located a possible murder weapon.

         We set forth the facts developed at trial in further detail below.

         1. Julie Was Known as a Responsible Person and Caring Mother Who Had Many Close Relationships

         Delacruz and Julie married young and had a daughter together, L.D. Julie was widely known as a mature and responsible individual and as a caring and attentive mother who doted on her daughter. Julie's mother, Sandra Soto, described Julie as a very responsible person and observed that, even though Julie prioritized her education and work, nothing was more important to her than L.D. L.D. had asthma, and she required medication. Julie was always prompt to take L.D. to her doctor visits and to administer L.D.'s medicine when necessary.

         Julie worked as a pharmacy technician at Walgreens, and by all professional accounts, she was a model employee. Her supervisor considered Julie to be her best pharmacy technician, and the one upon whom she depended the most. The store manager found that Julie was capable of handling any task and was never late for work. Julie was a very happy-go-lucky person who got along with everyone, and she never had any problems with co-workers or customers.

         Julie spent a great deal of time with her sister Samantha-going to movies or dinner during the week, talking on the phone "constantly," and "hanging out" together every other weekend. Michael Soto, Julie's cousin, had a close relationship with Julie and considered her to be more like a sister. Julie was best friends with Natasha Navarro and Amanda Hays, and the three of them "did everything together." Julie was described by members of Delacruz's own family-his mother, sister, and cousin-as "mature," "responsible," "smart," "kind," and valuing education.

         2. Julie and Delacruz's Troubled Relationship

         Julie and Delacruz met during their last year of high school, and they moved in together after graduation in 2006. They had a daughter, L.D., and married in May of 2009. They moved in with Delacruz's mother, Victoria Delacruz, where they lived for a time with their young daughter and Delacruz's three younger sisters.

         Shortly after they married, Julie began to complain to her friends and family that she was having problems in her marriage. Delacruz was obsessed with playing video games, sometimes playing for six or seven hours at a time. He spent most of his time playing video games instead of maintaining a job, attending to domestic duties, or caring for L.D. He even played video games at the hospital while Julie was in labor. Julie became concerned with Delacruz's ability to adequately care for their daughter and would often express concerns about leaving L.D. alone with him. According to Julie's aunt, Julie did not like to go home because she and Delacruz would argue about his incessant video gaming. She would also often come home to find L.D. dirty, unfed, and in need of her medication.

         Julie and Delacruz separated in November of 2009, and Julie moved into her grandparents' house in Dripping Springs. Julie used her tax refund to buy a new car, a 2006 Chevrolet Impala. Julie was excited about having this new car-something she could call her own-and it appeared to many that it represented her financial achievement and personal independence.

         Julie's cousin Michael observed that Julie and Delacruz's relationship became increasingly complicated after the birth of L.D. and that Delacruz became controlling of Julie's time and attention. Michael knew that Delacruz had physically and verbally abused Julie more than once.

         Michael and Delacruz "hung out about three or four times" over the course of a month after the separation until his mother and Julie advised him to stop. Delacruz took Michael to the mall to buy clothes, they went to a tattoo parlor together, and they would sometimes "just drive around and smoke." Michael believed that Delacruz was attempting to remain in Julie's life by hanging out with him, because whenever they spent time together, Delacruz pried for information about Julie. Specifically, Delacruz wanted to know what Julie was doing or if she was seeing someone new.

         Julie's separation from Delacruz was difficult, and their relationship was rocky. She had filed divorce papers, but Delacruz refused to sign them. Despite their difficulties, Julie always tried to maintain good communication with Delacruz for L.D.'s sake. Matters were more difficult when Julie had to interact with Delacruz in person while picking up or dropping off L.D., and she typically went with her cousin Michael on those occasions. In February of 2010, Julie asked Michael and one of his friends to accompany her to Delacruz's house to collect some of her possessions. Although the visit was without incident, Michael's friend thought that Delacruz was trying to get Julie alone in a room, so Michael and the friend kept a watchful eye on the situation.

         Julie's supervisor at work received complaints that Delacruz was "lingering around the pharmacy" in the waiting area and watching Julie work. Delacruz called the pharmacy several times while Julie was working, and Julie's "productivity wasn't going very well because he was totally trying to control every little situation." Delacruz's behavior became so distracting that Julie's supervisor had to kick him out of the store. Over the course of her separation from Delacruz, Julie confided in her supervisor. She said she was in fear for her life, that Delacruz had said that if he couldn't have Julie or L.D., nobody would, and that he followed her around in his car. Julie told her supervisor that "if anything ever happened to her, it was him."

         Julie told her mother that she felt that Delacruz "was up to something." The last time she talked to her sister before her disappearance she kept repeating "that she had a bad feeling."

         An inmate incarcerated with Delacruz after his arrest would later recount a conversation in which Delacruz admitted to physically assaulting a girlfriend and causing her to become unconscious.

         3. Julie's New Boyfriend

         Around the same time that she separated from Delacruz, Julie started to date Aaron Breaux, a man with whom she had shared an on-again, off-again relationship in the past. After running into each other at a grocery store, Julie and Aaron rekindled their relationship through email and eventually started to see each other regularly.

         About two or three months into her new relationship with Aaron, Julie began staying over at his apartment. Although Julie was initially cautious about bringing L.D. into her relationship with Aaron, the relationship soon evolved to a point where Julie was comfortable involving her daughter in her life with Aaron. Photographs showed Julie, Aaron, and L.D. together at the zoo, and Aaron's roommate was aware that Aaron sometimes took L.D. fishing. L.D. frequently stayed overnight at Aaron's apartment with Julie, where she also kept some of her daughter's belongings.

         Josh Dear was Aaron's roommate of three years. According to Josh, Julie and Aaron were taking the prospect of building a future together seriously: they planned to eventually move into their own apartment; they discussed their financial situations; and they made itemized lists about how they could meet the bills at the end of the month. And they discussed the timing of their work schedules to figure out how to best care for L.D.

         On March 25, 2010, Julie went to dinner with her friend Amanda and with Aaron. According to Amanda, Julie was "excited" and "overjoyed" at dinner. Julie and Aaron talked happily about their future and made plans to look at houses in which they could live together. After dinner, Julie and Aaron returned to Aaron's apartment where they watched a movie and stayed overnight.

         4. Delacruz's Disparaging Online Statements About Julie ...


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