COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-002-CR
ROGER EUGENE FAIN A/K/A APPELLANT
ROGER EUGENE FAIN, JR.
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Roger Eugene Fain a/k/a Roger Eugene Fain,
Jr. of capital murder, and the trial court sentenced him to imprisonment for life.
Appellant brings four points on appeal, challenging the legal and factual
sufficiency of the evidence and evidentiary rulings and arguing jury charge error.
1
… See Tex. R. App. P. 47.4.
Because the trial court committed no reversible error, we affirm the trial court’s
judgment.
Sufficiency of the Evidence
In his first point, Appellant challenges both the legal and factual
sufficiency of the evidence to support his conviction for capital murder. He
argues that the evidence is both legally and factually insufficient to show (1)
that he killed Linda Donahew, the deceased, (2) that her death was caused
intentionally, and (3) that her death occurred in the course of committing or
attempting to commit the offense of aggravated sexual assault. Although he
raises his complaints of legal and factual sufficiency in a single point, the Texas
Court of Criminal Appeals instructs us that we should address them separately.2
The jury heard the following evidence. Bonnie Bishop shared a house
with her sister, Donahew. On June 1, 1987, Bishop left work and arrived home
at approximately 8:00 p.m. She entered the house to find her sister’s nude and
blood-covered body lying on the floor in a bedroom closet.
The autopsy revealed that Donahew had died from manual strangulation
and that a secondary cause of death was a stab wound to her neck. The
postmortem examination also revealed several hairs found clinched in her
2
… Laster v. State, 275 S.W.3d 512, 519 (Tex. Crim. App. 2009).
2
hands, DNA artifacts in her mouth, and three foreign pubic hairs in the genital
area.
Approximately fourteen years later, in August 2001, a DNA sample was
taken from Appellant, who was incarcerated for an unrelated crime. The
sample was entered into the Combined DNA Index System (CODIS) of the
Texas Department of Public Safety (DPS). Four years later, in October 2005,
the cold case of Donahew’s murder was reopened, and the DNA samples
acquired during the examination of her body were uploaded into CODIS and
were found to match the DNA profile of Appellant.
There was no direct evidence of Appellant’s involvement in Donahew’s
murder. At trial, the State relied on the DNA evidence, testimony from a
witness who saw a truck similar to that owned by Appellant at the time of the
offense parked in front of Donahew’s house at the time of the offense, the
testimony of an inmate, Danny Smith, who claimed that Appellant had
confessed to him in jail, testimony that Donahew had previously been seen in
the company of Appellant, and testimony that on the day of her death she had
said that she was worried about meeting someone who wanted to look at a
truck she was selling.
Dr. Nizam Peerwani, the medical examiner who performed the autopsy
and forensic examination of Donahew’s body, testified that he took oral swabs
3
from her mouth and that they contained DNA material. He testified that he was
unable to determine exactly when the DNA had been deposited in her mouth.
Kelly Solis testified that she was a DNA analyst for the DPS CODIS lab in
Austin, Texas. She testified that the DNA samples from the oral swabs taken
by Dr. Peerwani matched Appellant’s DNA profile.
Constance Patton testified that she was a senior forensic biologist and
DNA technical leader for the medical examiner’s office crime laboratory in Fort
Worth. She testified that she had examined the samples from the oral swabs
taken by Dr. Peerwani and that the results of her examination showed that the
samples contained DNA material consistent with the DNA of Donahew and a
mixture containing one DNA sample consistent with that of Appellant and a
sample of male DNA foreign to both Donahew and Appellant. Patton testified
that it could not be determined whether Appellant’s DNA had been contributed
before or after the other male DNA or how long it had been present. She also
testified that she had tested a portion of a towel taken from Donahew’s house.
The towel tested presumptively for blood and also for a mixture of DNA from
Donahew. She testified that a sample of male DNA from Ronald Nix, a
boyfriend of Donahew, could not be excluded from matching the sample on the
towel. Patton also found a sperm stain on the comforter from Donahew’s bed,
the DNA profile of which also matched Nix’s sample.
4
Dr. Peerwani had found several hairs clutched in Donahew’s hand during
the postmortem examination. One of the hairs was identified as dog hair.
Other hairs were consistent with either the hair of Donahew or that of her
sister, Bishop. One hair, however, was not matched to Donahew, Bishop, or
Appellant.
Susan Kenney testified that in 1987 she had been working as a serologist
in the Fort Worth Police Department Crime Lab. She examined the evidence
taken by Dr. Peerwani as part of the examination of Donahew’s body. She
testified that part of the protocol of the examination was to comb the pubic hair
area of Donahew. In this case, the combing resulted in finding three hairs that
were not similar to those of Donahew.
Detective Jim Ford testified that he had requested DNA testing of the
unknown pubic hair found on Donahew’s body. The test showed that Nix could
not be eliminated as a contributor of the hair.
Luke Kortegast, who testified by videotaped deposition because he was
on active duty in the military and scheduled to be deployed overseas, testified
that at the time of the offense, when he was seventeen years old, he lived with
his parents next door to Donahew, whom he described as attractive. He often
saw a white pickup truck parked at Donahew’s house from the winter of 1986
through the early spring of 1987. He described the truck as a mid-to-late
5
1970s white pickup truck with large tires and a raised suspension. He thought
that it was a four-wheel drive truck and in “pretty good shape.” He testified
that on occasion the truck had been at the house overnight. He did not
remember the trucks having a toolbox or a PVC pipe attached to its bed.
He described the driver as a white male, approximately six feet tall and
weighing between 175 and 200 pounds, with long dark brown hair and a beard
that ranged from a few days’ stubble to a full beard. Kortegast testified that
the man usually wore a baseball cap and aviator-type sunglasses.
At some point in the spring, Kortegast stopped seeing the truck at
Donahew’s house, but he testified that he did see it parked in the driveway one
more time on the day of Donahew’s murder. He testified that the truck was in
the driveway at approximately 10:30 a.m. the day of her death. He was unable
to identify Appellant as the driver of the truck, either at trial or from a photo
spread. Kortegast also testified that Donahew had frequent visitors in addition
to the bearded man.
Ernest Fain, Appellant’s brother, testified that in 1987, Appellant drove
a mid-1970s white Ford pickup truck and that the truck had a black tool box
and PVC piping attached to its bed. He described it as a standard truck, not a
raised four-wheel-drive vehicle. He also testified that he had seen Appellant
approximately a dozen times during 1986 and 1987 and that he had never
6
known Appellant to have a beard. He also testified that the pickup was “very
beat up.”
Sheila Nelson testified that she lived next door to Donahew in 1987. On
the day of Donahew’s murder, Nelson and her husband left the house at
approximately 5:15 p.m. to take a walk. They noticed a white Ford pickup
truck parked on the street “not in front of my house and not in front of Linda’s
but kind of in between the two.” She testified that it was an older model truck
with a tool box. The truck was still there when she returned from her walk
about fifteen to twenty minutes later. She and her husband went out to eat,
and when they returned at about 8:30 p.m., the pickup was gone. Nelson
testified that Donahew had had a lot of friends and quite a bit of company.
Bishop, Donahew’s sister, testified that in November 2005 she had been
shown a photo spread containing Appellant’s photograph. After looking at it
for approximately twenty minutes, she had told Detective Ford that she did not
recognize anyone in it. After the photo array was shown to her other sister,
however, Bishop asked to see it again, and she then told Ford that it looked like
someone who had come up to Donahew in a restaurant and bar called John B’s.
Bishop also testified that Donahew had broken up with Nix some time before
her death.
7
Donald Thweatt testified that in 1987 he owned two horses, which he
stabled at Braddock’s Stables in Arlington. Around June 1, 1987, he saw
Donahew, who also kept horses there, at the stables. She was not driving her
usual vehicle but was with a male in a 1970s white Ford pickup. He described
the man as being about six feet tall and weighing around 180 pounds with
shoulder-length hair and glasses. On cross examination, Thweatt said that
Donahew and the man were unloading clear plastic bags of cedar shavings. He
also described the man as having an untrimmed and unkempt beard. Thweatt
testified that he could not remember the exact date, but that it was “sometime
in the late spring of 1987.”
Michael Higham testified that in the late spring and summer of 1987, he
was the detail shop manager of Pleasant Ridge Car Wash in Arlington. In the
late spring or early summer of 1987, Donahew took her car in for detailing.
When he had finished with the car, he went to the horse stables to pick her up
and take her back to her car. She was with a man whom he identified as
Appellant. Higham drove both the man and Donahew back to pick up her car.
Arlington police officer William Zimmerman testified that in August 1987,
he had interviewed Michael Higham and that Higham had told him that on the
day he went to pick up Donahew at the stables, she was not there when he
arrived. Higham had talked to Ms. Braddock for a few minutes until Donahew
8
arrived with a white male who was driving a pale blue 1973 or 1974 pickup
truck with wide spoked wheels.
Danny Smith, a sixty-three-year-old inmate who at the time of trial was
serving forty-five years’ confinement for involuntary manslaughter, enhanced
to a habitual offense, testified that he knew Appellant from having been in
prison with him. In 2005, while they were housed in the same cell block of the
Eastham Unit, Appellant told him that Arlington detectives had visited him and
had taken mouth swabs for DNA purposes. After the visit, Appellant started
“acting in an excited type of manner.” Appellant told Smith that he had been
having sex with Donahew and had unintentionally strangled her during sex.
Smith claimed that Appellant told him that the strangulation was part of the sex
act.
Smith admitted that he was worried about the possibility of dying in
prison and that he had lost various appeals in his case, up to and including his
appeals in federal court and the United States Supreme Court. He also
admitted that he had made contact with the Tarrant County District Attorney’s
office regarding testifying against Appellant, calling himself a “crucial State’s
witness” and offering his testimony in exchange for benefits to him, including
help with his sentence. He testified that he had wanted a guarantee in writing
of help “in this and possibly other offenses currently unsolved.” He also
9
admitted to having offered himself as a State’s witness in other cases. In
exchange, he had asked to be removed from his current prison unit and placed
in a unit with better medical facilities. He also admitted that he had, in fact,
been moved to a geriatric medical facility in the Terrell Unit.
Smith testified that when he was interviewed by Appellant’s trial counsel,
he had told them that he did not know why he had been brought to Tarrant
County and that he did not have any information that would help the State
regarding Appellant’s alleged killing of Donahew. Smith also denied knowing
that one of Appellant’s attorneys was, in fact, an attorney. Later, however,
Smith admitted that he had previously written to the same attorney requesting
help in his case. Smith testified that Appellant had shared news articles from
newspapers and from the internet about the Donahew murder case.
Ronald Nix testified that he had dated Donahew from February 1987 until
her death. In May 1987, he and Donahew had taken a vacation together to
Mexico. A picture taken at the time of the trip showed that in May 1987, Nix
had dark, curly hair and wore a full beard. He also testified that he had seen
Donahew on the Friday preceding her death. He testified that shortly before her
death, he had been at a club with Donahew and had seen her talking with a
man whom Nix identified as Appellant. Nix testified that Donahew had given
10
Appellant her phone number. Nix also admitted that he had been at Braddock
Stables with Donahew in May 1987.
To recap, Danny Smith testified that Appellant had admitted strangling
Donahew, albeit during consensual sexual activity. The medical examiner’s
evidence showed that stabbing was a secondary cause of death. The jury was
free to believe or disbelieve Appellant’s description of the sexual activity as
consensual, and the fact that Donahew was stabbed was some evidence that
the sexual activity was not consensual. Corroborating evidence includes the
evidence that Appellant’s DNA was found in Donahew’s mouth, Nix’s
testimony that he had seen Donahew talking to Appellant in a bar, and Nelson’s
testimony that a truck similar to Appellant’s had been parked on the street near
Donahew’s house after 5:00 p.m. on the day of her death. This evidence tends
to connect Appellant to Donahew’s murder. Applying the appropriate standard
of review and viewing the evidence in the light most favorable to the
prosecution,3 we hold that a rational trier of fact could have found the essential
elements of capital murder in the course of committing aggravated sexual
assault beyond a reasonable doubt.
3
… See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
11
In determining the factual sufficiency of the evidence, we recognize that
most of the evidence is equivocal. Appellant’s DNA was found in Donahew’s
mouth, but unidentified DNA was also present in her mouth, and Nix’s DNA
was found in a semen stain on the bed’s comforter and on a towel. There is
no way to know when the DNA samples were deposited or the order in which
they were deposited. Nix’s hair, but not Appellant’s, was found in a combing
of Donahew’s pubic hair. Additionally, Nix’s testimony that he was dating
Donahew at the time of her death was disputed by her sister’s testimony that
Donahew had broken up with Nix. A photograph of Nix from May 1987
showed that he had a beard, and there was testimony that Appellant had never
worn a beard. A neighbor saw a man with a beard visiting Donahew’s house
regularly and testified that the man drove a white pickup that was in good
shape, unlike the testimony regarding Appellant’s pickup. The neighbor
testified that there was a period of time when the man did not come to
Donahew’s house but that the pickup was in the driveway around 10:30 the
morning she was killed.
Although there was testimony that Donahew had been with a man at
Braddock Stables in late spring or early summer, Nix admitted that he had been
at the stables with her in May 1987. Officer Zimmerman testified that Michael
Higham had told him that Donahew had arrived in a pickup with a man.
12
Higham testified that he saw Donahew and a man unloading clear plastic bags
of cedar shavings. The witnesses could have been testifying about two
different men or two different occurrences with the same man.
Smith’s testimony was corroborated by the evidence of the presence of
a pickup similar to the description of Appellant’s pickup outside Donahew’s
house on the evening she was killed and the presence of Appellant’s DNA in her
mouth. The jury apparently believed that Appellant had confessed to Smith but
did not believe that Appellant had engaged in consensual sexual activity with
consensual autoerotic strangulation.4 The fact that Donahew was also fatally
stabbed is evidence that undermines Appellant’s claim of consent. “The jury,
as the exclusive judge of the credibility of the witnesses and the weight to be
given their testimony, may accept all, part or none of the testimony of any one
witness in determining the facts proved.” 5 Because stabbing was a secondary
cause of death, and Donahew was alive when she was stabbed, according to
the medical examiner’s testimony, the strangulation and stabbing occurred in
close temporal proximity. It was reasonable for the jury to believe that
Appellant had told Smith that he had strangled Donahew and to believe that
Appellant was truthful about the strangulation, but also reasonable for the jury
4
… See Johnson v. State, 23 S.W.3d 1, 8, 9 (Tex. Crim. App. 2000).
5
… Johnson v. State, 503 S.W.2d 788, 793 (Tex. Crim. App. 1974).
13
to disbelieve Appellant’s claim that the sexual activity and the strangulation
were consensual. And it was reasonable for the jury to conclude, based on the
medical examiner’s testimony, that Appellant had also stabbed Donahew.
Applying the appropriate standard of review,6 we therefore hold that the
evidence is factually sufficient to support the jury’s verdict. We overrule
Appellant’s first point.
Seizure of DNA Sample
In his second point, Appellant argues that the trial court committed
reversible error by denying his challenge to the taking of a DNA sample from his
body.
In August 2001, a DNA sample was taken by swabbing Appellant’s
mouth. It was taken in compliance with a general provision requiring routine
collection of DNA samples from individuals who had been convicted of certain
offenses.7 When the sample was entered into DPS’s CODIS, it became
available for comparison with the DNA evidence acquired when Donahew’s
6
… See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 1037 (2009); Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 414–15, 417
(Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 8, 9, 12.
7
… See Act effective Sept. 1, 1999, 76th Leg., R.S., ch. 1368, 1999
Tex. Gen. Laws 4626, 4626–27 (current version at Tex. Gov’t Code Ann.
§ 411.148 (Vernon Supp. 2008)).
14
body was examined. When those samples taken from Donahew were uploaded
into CODIS, they showed a match with Appellant’s DNA profile.
The trial court denied Appellant’s motion to suppress the DNA evidence.
Although the DNA sample at trial was taken pursuant to a warrant, dated
December 5, 2005, the warrant was obtained based on the CODIS match,
which had been based on the initial 2001 DNA sample obtained from Appellant
without a warrant but pursuant to the government code provision. The Texas
Court of Criminal Appeals has addressed this issue and has decided it contrary
to Appellant’s argument:
Although the taking of a blood sample for DNA analysis purposes
is clearly a search, the Fourth Amendment does not proscribe all
searches, only those that are unreasonable. The United States
Supreme Court has yet to address the validity of state and federal
DNA collection statutes under the Fourth Amendment, but state
and federal courts that have addressed the issue of a warrantless
search for DNA databank samples pursuant to statute are almost
unanimous in holding that these statutes do not violate the Fourth
Amendment.
The courts deciding this issue have split in their rationale.
Some have stated that DNA collection statutes permit a
warrantless, suspicionless search under the Supreme Court’s
“special needs” test. Most federal and state courts, however, have
upheld the DNA databank statutes under the “totality of
circumstances” test. This trend increased after the Supreme
Court’s decision in Samson v. California, which used the “totality
of the circumstances” test to uphold suspicionless searches of
felons on parole, as long as the searches are not arbitrary,
capricious, or harassing. Even before Samson, numerous courts
had applied the “totality of the circumstances” test and concluded
15
that the governmental interest served by collecting DNA
outweighed the minimal intrusion upon a probationer’s or parolee’s
privacy. We agree with those jurisdictions that have held that
warrantless DNA collection and databank systems pass Fourth
Amendment scrutiny under the “totality of the circumstances.” 8
Following the mandatory precedent of the Texas Court of Criminal Appeals, we
overrule Appellant’s second point.
Mistake of Fact
In his third point, Appellant argues that the trial court reversibly erred by
failing to include a mistake of fact jury instruction in the jury charge. Section
8.02 of the penal code provides that it is a defense to prosecution that “the
actor through mistake formed a reasonable belief about a matter of fact if his
mistaken belief negated the kind of culpability required for commission of the
offense.” 9 A defendant is entitled to an instruction on mistake of fact if the
issue is raised by the evidence. 10 If the evidence when viewed in the light
favorable to the defendant does not establish a mistake of fact defense, the
instruction is not required.11
8
… Segundo v. State, 270 S.W.3d 79, 97–98 (Tex. Crim. App. 2008)
(citations omitted).
9
… Tex. Penal Code Ann. § 8.02(a) (Vernon 2003).
10
… Beggs v. State, 597 S.W.2d 375, 380 (Tex. Crim. App. 1980).
11
… Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).
16
The indictment charges that Appellant intentionally caused the death of
Linda Donahew by strangling her with his hand or hands, or with an object
unknown to the grand jury, by stabbing her with a knife, or by any combination
of strangling and stabbing her with a knife, and that Appellant was in the
course of committing or attempting to commit the offense of aggravated sexual
assault when he caused her death. Smith testified that Appellant told him that
he had been having sex with Donahew and had unintentionally strangled her
during sex and that the strangulation was part of the sex act. The trial court
refused to instruct the jury regarding a mistake of fact on Appellant’s part
regarding the degree of the compression of Donahew’s neck. To the extent
that the manual strangulation was the cause of death, Smith’s testimony raises
the issue of mistake of fact. Accordingly, the trial court should have given the
mistake of fact instruction and erred by not doing so.
Error in the charge, if, as here, properly preserved in the trial court,
requires reversal if the error was “calculated to injure the rights of [the]
defendant,” which means no more than that there must be some harm to the
accused from the error. 12 In other words, a properly preserved error will require
12
… Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor v.
State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Minor
v. State, 91 S.W.3d 824, 827–29 (Tex. App.—Fort Worth 2002, pet. ref’d)
17
reversal as long as the error is not harmless.13 Whether Appellant suffered any
harm “must be assayed in light of the entire jury charge, the state of the
evidence, including the contested issues and weight of probative evidence, the
argument of counsel, and any other relevant information revealed by the record
of the trial as a whole.” 14
The jury was instructed that a person commits aggravated sexual assault
if he “intentionally or knowingly causes the penetration of the mouth of another
person, who is not the spouse of the actor, by the sexual organ of the actor,
without that person’s consent, and if the person causes serious bodily injury or
attempts to cause the death of the victim.” The trial court also instructed the
jury that serious bodily injury means “bodily injury that creates a substantial risk
of death or that causes death, serious permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ.”
The jury charge, then, implicitly instructed the jury that if Appellant
caused Donahew’s death in the course of committing sexual assault, he had
committed aggravated sexual assault, and the jury charge explicitly instructed
(applying analysis).
13
… Almanza, 686 S.W.2d at 171.
14
… Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.
2000).
18
the jury that if Appellant caused her death during the commission of aggravated
sexual assault, he had committed capital murder. That is, the jury was
implicitly instructed that the act that converted sexual assault into aggravated
sexual assault could be the same act that converted this offense into capital
murder.
Although the capital murder statute provides that a person who causes
the death of another individual in the course of committing kidnapping or
robbery commits the offense of capital murder, this statute does not allow for
the conviction of a person for capital murder if the person committed simple
sexual assault rather than aggravated sexual assault.15 That is, a person may
commit simple kidnapping or robbery, without an aggravating element, and if
the person causes death during the commission of one of those offenses, the
person commits capital murder.16 But in regard to sexual assault, a person is
guilty of capital murder only if the person causes the death in the course of
committing aggravated, not simple, sexual assault.17 Neither the State nor
Appellant suggests that the aggravated sexual assault was proved by evidence
of the attempt to cause the death, which in this case was successful. Can the
15
… Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2008).
16
… Id.
17
… Id.
19
attempt to cause the death be carved out as a separate aggravating factor from
the successful act of causing the death? Appellant did not raise this issue as
part of his sufficiency claim; we bring it up only in addressing harm.
The medical evidence establishes that Donahew was both strangled and
stabbed. There is no evidence of a threat that would elevate the sexual assault
to an aggravated sexual assault.18 Although both means of causing the death
were submitted to the jury, there is no evidence that the stabbing was
accidental or the result of a mistake of fact. Additionally, the evidence shows
that Donahew was stabbed while she was still alive. It was the stab wound,
not the strangulation, that the medical examiner testified was delivered to
“really make sure [she was] going to die.” Although the medical examiner
described the cause of death as “manual strangulation and the second cause
of death was a stab wound to the left neck,” the stab wound was delivered to
a living person.
Both the indictment and the jury charge allowed the jury to convict
Appellant of capital murder if the jury found that Appellant had caused
Donahew’s death by stabbing her with a knife in the course of committing
aggravated sexual assault. “When a general verdict is returned and the
18
… See id. § 22.021(a)(1), (2)(A)(ii)–(iii).
20
evidence is sufficient to support a finding of guilt under any of the paragraph
allegations submitted, the verdict will be upheld.” 19
The record before this court would allow the jury to view the strangling
as the threat of death or serious bodily injury in the course of sexual assault to
raise sexual assault to an aggravated offense.20 The jury therefore could have
found that the stab wound caused the death in the course of Appellant’s
committing aggravated sexual assault.
The State was obligated to prove that Appellant intentionally caused
Donahew’s death. Failure to include the requested instruction on mistake of
fact would at first glance seem to necessitate a determination that Appellant
suffered some harm as a result of that failure. But here, Donahew was not only
strangled; she was also stabbed, as the medical examiner phrased it, to make
sure that she was really dead. It was therefore unnecessary for the jury to find
that Appellant intended to strangle her to death in order for the jury to find that
he intentionally caused her death by stabbing her in the neck. Mistake of fact
went only to the strangling, not to the stabbing.
19
… McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert.
denied, 522 U.S. 844 (1997).
20
… Tex. Penal Code Ann. § 22.021(a)(1), (2)(A).
21
Because of the presence of the stab wound, we conclude that Appellant
did not suffer any harm from the trial court’s refusal to give the mistake of fact
instruction regarding the degree of compression of Donahew’s neck.
Accordingly, we overrule Appellant’s third point.
Rule 803(3) Statement
In his fourth point, Appellant argues that the trial court reversibly erred
by admitting a statement by Donahew that she was going to show her pickup
to a man who might be interested in purchasing it. Appellant argues that he
was entitled to confront and cross examine the witness about the statement
and that its admission constituted inadmissible hearsay and a denial of his rights
under the Confrontation Clause of the Sixth Amendment.
Linda Reed testified that Donahew was a close friend and had come to
her house for a visit around 11:00 a.m. on the day she died. Donahew left
around 3:00 p.m. that afternoon, and as she left, she told Reed that she was
nervous because later she was going to show her pickup truck to a man she
had met at the stables and that he might buy it from her. Reed testified that
Donahew had a bad feeling about the meeting.
22
The State argues that the statement was not testimonial and therefore
not subject to a Crawford analysis.21 We agree. The Sixth Amendment
Confrontation Clause forbids the admission of testimonial statements of a
witness who does not appear at trial unless that person was unable to testify
and the defendant had a prior opportunity for cross examination.22 The
Supreme Court suggests that testimonial statements are those “made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.” 23 The State argues
that such casual remarks made to friends are generally not testimonial. Under
the limited facts of this case, we agree that Donahew’s statement to Reed was
not testimonial but, rather, a casual remark expressing her intent to go show
her truck. The statement about being nervous is an indication of her state of
mind. There is no indication that Donahew made her remark to Reed under
circumstances that would have led an objective witness to believe that the
statement would be available for use at a trial later. Because the statement
was not testimonial, it does not violate the Confrontation Clause.
21
… Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
22
… Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008)
(citing Crawford, 541 U.S. at 53–54, 124 S. Ct. at 1365).
23
… See Crawford, 541 U.S. at 51–52, 124 S. Ct. at 1364.
23
Regarding Appellant’s contention that the statement is inadmissible
hearsay, the State argues that under the Hillmon doctrine, 24 a remark is
admissible as a hearsay exception under rule 803(3) if it constitutes a
statement of present state of mind offered to prove subsequent conduct in
accordance with the state of mind. We disagree with the State’s analysis but
not its ultimate conclusion that the statement was admissible. Donahew’s
statement was not admissible to show that she did indeed go to show her
truck. It was not admissible for the truth of the matter asserted but rather to
show her intent, her state of mind.25 We overrule Appellant’s fourth point.
Conclusion
Having overruled Appellant’s four points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 20, 2009
24
… Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909
(1892).
25
… See Tex. R. Evid. 803(3).
24