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Walter v. State

Court of Appeals of Texas, Eleventh District

August 30, 2019

PHILLIP JAY WALTER, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 42nd District Court Callahan County, Texas Trial Court Cause No. 7138

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [4]

          OPINION

          JOHN M. BAILEY CHIEF JUSTICE

         At the conclusion of a joint trial, the jury convicted Appellant, Phillip Jay Walter, Jr., and his wife, Violet Maree Walter, of murder, robbery, and theft of a firearm.[1] See Tex. Penal Code Ann. §§ 19.02, 29.02, 31.03 (West 2019). The trial court assessed Appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for forty years for the murder conviction and for twenty years for the robbery conviction. The trial court also assessed Appellant's punishment at confinement in the State Jail Division of the Texas Department of Criminal Justice for a term of two years for the conviction for theft of a firearm. Additionally, the trial court ordered that the sentences are to run concurrently.[2] Appellant challenges his convictions in a single issue on appeal. We affirm.

         Background Facts

         Don Allen, a police officer with the Abilene Police Department, was found dead at his home in Clyde on August 31, 2015. Approximately one week before his death, Allen placed an advertisement on Craigslist seeking an unconventional sexual encounter. Walter responded to Allen's post on August 29, 2015, writing: "Still looking? Sexy couple in their 20s. . . . Down for anything." For the next couple of days, Walter and Allen e-mailed each other about the prospect of a sexual encounter between Appellant, Allen, and Walter. Eventually, Allen invited Appellant and Walter to his home in Clyde on the afternoon of August 31.

         That evening, Allen's fiancée found Allen dead in their bedroom, lying facedown on the floor. Allen was wearing only a T-shirt and socks; he was otherwise naked. His hands and ankles had been bound by USB cords, with his hands tied behind his back. Another USB cord, along with Allen's shorts, was loosely wrapped around Allen's face and neck. There was no evidence of forced entry or a struggle inside the home.

         One of Allen's neighbors told investigators that he saw a male and a female arrive at Allen's home that afternoon. Another one of Allen's neighbors saw a vehicle near Allen's home. The neighbor provided the police with the vehicle's make, color, and model. Investigators discovered that Appellant owned a vehicle similar to the vehicle seen near Allen's home.

         Video surveillance from a pawn shop in Abilene showed Appellant, accompanied by Walter, pawning four video games and a woman's bracelet on the evening of August 31. The same four video games had been recently played on Allen's video game console, and Allen's fiancée identified the pawned bracelet as her bracelet. Investigators also identified Appellant's fingerprint on a water bottle at Allen's home.

         Appellant and Walter were subsequently arrested. Police officers searched their apartment pursuant to a search warrant. In the apartment, the police found an Abilene Police Department badge, a taser, handcuffs, and an ASP case that had been issued to Allen as an Abilene Police Officer. Allen's firearm was returned to police by a confidential informant, and Allen's police radio was found on the side of a highway, two miles east of Clyde.

         During the search of the apartment, the police also found Appellant's and Walter's cell phones. The police searched the phones pursuant to additional search warrants. Walter's text messages to Appellant revealed that they were experiencing financial difficulties at the time and were in the process of being evicted from their apartment. Walter sent Appellant several text messages on the day of Allen's death, urging Appellant to do something to remedy their dire financial situation. For example, Walter sent Appellant the following text messages on August 31: "Go f--k someone else and restore our s--t," "Hurry up and fix this," "DO SOMETHING NOW," and "You NEED to do this. Your fear of a police report versus LOSING us should be bigger. Your need to feed and house your CHILDREN should be bigger tha[n] ANYTHING."

         After Walter set up the meeting with Allen at Allen's home in Clyde, Walter texted Appellant that "[w]e have that Clyde lick," "[w]e MUST do it and do it hard," and "[t]he lick is waiting." The State presented evidence that a "lick" refers to robbery or thievery.

         Dr. Tasha Greenberg, a deputy medical examiner at the Tarrant County Medical Examiner's Office, performed an autopsy on Allen's body. Dr. Greenberg testified that she observed multiple areas of bleeding "into the muscles of the front of the neck," along with a fracture of the thyroid cartilage, specifically the right cornu. There were also lacerations of the lower lip. Dr. Greenberg determined that the cause of death was asphyxia, which she described as a lack of oxygen to the brain. The evidence of injury to the neck indicated to her that there was a "compression of the vessels in the neck." Dr. Greenberg also testified that there was a likelihood that pressure was applied to Allen's chest or back.

         Dr. Greenberg did not see any evidence that the USB cord that was found around Allen's neck was used as a ligature. In this regard, this cord was somewhat loose around Allen's neck. Dr. Greenberg testified that the lack of an imprint on Allen's ...


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