IN THE
TENTH COURT OF APPEALS
No. 10-01-177-CR
ROBERT ANDERSON RYAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court # F34372
O P I N I O N
Robert Anderson Ryan was charged with five counts of injury to a child. Judy was Ryan’s girlfriend. The victims were Judy’s two daughters: Jennifer, age 5 and Sheila, age 9. The jury found him guilty of two counts of intentionally causing bodily injury to Jennifer and one count of recklessly causing bodily injury to Sheila. Punishment was assessed at eight years in prison and a $1,000 fine for each count against Jennifer. The jury assessed punishment at two years in a state jail facility and a $500 fine for the offense against Sheila. Ryan now appeals his conviction. We affirm.
Background
Ryan lived with Judy and her four children. Ryan stayed with the children while Judy worked. One evening, the youngest child, Jennifer, was vomiting and having seizures. Judy took Jennifer and the other children over to Jennifer’s grandmother’s house. Jennifer’s grandmother took them all to the hospital. Jennifer was admitted to the hospital with multiple bruises to her brain and bruising all over her body. The most severe external bruising appeared on her buttocks. Investigators questioned Ryan about Jennifer’s injuries. He admitted to spanking Jennifer with a flip-flop and to throwing her onto the bed where she bumped her head. Later, the other children were taken to the Advocacy Center and interviewed. During the interviews, similar external bruising was found on Sheila, Jennifer’s 9 year old sister.
Voluntariness of Confession
In his first issue, Ryan contends that the trial court erred in admitting his written confession and videotaped statement because he was mentally coerced by investigators with the Johnson County Sheriff’s Office.
An accused must give his confession voluntarily before it can be used against him. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995); Sendejo v. State, 953 S.W.2d 443, 447-48 (Tex. App.—Waco 1997, pet. ref’d). Once the accused contests the admission of his statement on the ground of “involuntariness,” the due process guarantee requires the trial court to hold a hearing on the admissibility of the statement outside the presence of the jury. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (citing Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)). See also Tex. Crim. Proc. Ann. art. 38.22 § 6 (Vernon 1979). At the hearing, the trial court is the sole judge of the weight and credibility of the evidence, and the court’s findings may not be disturbed on appeal absent a clear abuse of discretion. Alvarado, 912 S.W.2d at 211.
Ryan contends on appeal that his confession was involuntary because he was mentally coerced into signing it. Involuntary confessions offend due process when they flow from the improper conduct of law enforcement officials. Lane v. State, 933 S.W.2d 504, 511 (Tex. Crim. App. 1996). Mental compulsion is a subtle force associated with offering a defendant two choices, one of which results in a penalty, punishment, or detriment from which the defendant is entitled to be free. Thomas v. State, 723 S.W.2d 696, 704 (Tex. Crim. App. 1986) (consent to breath test); see also Flemming v. State, 949 S.W.2d 876 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (citing Thomas, supra). The voluntariness of a confession is determined by a review of the totality of the circumstances. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).
Prior to trial, the trial court held a hearing to determine the voluntariness of Ryan’s written and videotaped statements. At the hearing, Ryan admitted that he accompanied a police officer to the Johnson County Law Enforcement Center for questioning about the injuries to Jennifer. He knew he was not under arrest. He was read his Miranda warnings prior to any questioning. Ryan testified that he understood those rights and decided to talk to the investigators anyway. He stated that he knew he could be arrested for what he told them. His complaint, however, was that he felt he was threatened to admit to throwing Jennifer on the bed where she then hit her head on the bed post or Judy would be arrested and all her children taken away from her. By the end of his testimony, Ryan admitted that the investigators did not tell him that they would arrest Judy if he did not sign a statement.
Detective Michael Gaudet testified at the hearing that he conducted an interview of Ryan which was videotaped. He denied ever threatening Ryan with Judy’s arrest. He also denied implying that Judy would be arrested unless Ryan admitted to causing Jennifer’s head injury. Detective Allan Gilreath also interviewed Ryan. He watched Gaudet conduct his interview from an observation room. Gilreath stated that he did not hear Gaudet threaten Ryan with Judy’s arrest if he did not give a full confession. When Gaudet completed his interview, Gilreath testified that he then conducted an interview of Ryan. He stated that at no time did he threaten Ryan with Judy’s arrest unless Ryan confessed. Gilreath also watched from a different room when Lieutenant Troy Fuller interviewed Ryan. He did not observe Fuller threaten Ryan with Judy’s arrest if Ryan did not confess.
After Ryan gave a statement, Fuller spoke with him. Fuller testified to the same statements made by Detectives Gaudet and Gilreath: that no one threatened Ryan with the arrest of Judy if Ryan did not confess.
The videotape of Ryan’s interview was admitted into evidence. It corroborates the investigators’ testimony. The trial court reviewed the video after the hearing. In findings of fact and conclusions of law, the trial court stated, among other things, that Ryan was not coerced or threatened to make his statement; that he was made no promise of help or leniency to either himself or Judy to induce Ryan to make his statement; and that he was never threatened with the possibility of Judy being arrested to induce Ryan to make a statement. The trial court concluded that the written and recorded statements were freely and voluntarily given and signed by Ryan and were admissible in evidence.
Under the totality of the circumstances, the trial court did not abuse its discretion in finding Ryan’s confession to be voluntary and in admitting Ryan’s written confession and videotaped statement. His first issue is overruled.
Photographs
In his second issue, Ryan contends that the trial court erred in admitting 20 photographs of the injuries his two victims received because they created an unfair prejudice which outweighed any probative value they may have had. The Texas Rules of Evidence provide that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403.
The admissibility of a photograph is within the discretion of the trial court and is reviewed for an abuse of discretion. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999); Kelley v. State, 22 S.W.3d 642, 644 (Tex. App.—Waco 2000, no pet.). We will not find error in a trial court’s evidentiary ruling unless it falls outside “the zone of reasonable disagreement.” Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
In response to a Rule 403 objection to a photograph, the trial court must decide whether the probative value of the photograph is substantially outweighed by the danger of unfair prejudice. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001); Najar v. State, 74 S.W.3d 82, 89 (Tex. App.—Waco 2002, no pet.); Tex. R. App. P. 403. When making this determination, the trial court should consider “the number of photographs, the size of the photograph, whether it is in color or black and white, the detail shown in the photograph, whether the photograph is gruesome, whether the body is naked or clothed, and whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the [defendant’s] detriment.” Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000); Najar, 74 S.W.3d at 89.
Ryan was charged with injuring two children. Eleven of the photographs were of Jennifer. Nine were of Sheila. The photos were normal-sized, 4 inch by 6 inch. As presented to this court, they were black and white xeroxed copies. No one testified as to whether the photos were originally color or black and white. Jennifer was the most severely beaten of the two girls. The photos of her show the various bruises all over her body: the front of her shoulder, the back of her shoulder, the side of her face, the backs of her legs, and the severe bruising on her buttocks. However, they are not gruesome. The photos depict Jennifer as unclothed but only to the extent necessary to show the bruises. As for Sheila, the photographs also depict the bruising apparent on the various parts of her body. She, too, is unclothed in the photos but again, only to the extent necessary to show her injuries. Nor are these photos gruesome.
The probative value of these photographs, that is depiction of the children’s injuries, was not substantially outweighed by the danger of unfair prejudice. Thus, the trial court did not abuse its discretion in admitting these photographs. Ryan’s second issue is overruled.
Conclusion
Having overruled Ryan’s two issues on appeal, the trial court’s judgment is affirmed.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed October 30, 2002
Do not publish
[CR25]
l barn down below Joe's barn, and when he came by he'll just blow [Joe's] brains out." Further, she testified that Ludwig said, "[A]nd I may just have to take Matt out, too." When asked by the prosecutor whether Ludwig was specific about how he would "take [Joe] out," Theresa replied, "He said he would have a shotgun."
On April 18, 1990, after Theresa had moved to Ennis, she recorded a telephone conversation with Ludwig in which he denied watching the Trojacek family or putting a "steel post up against [Kitty's] van door so that she would know that somebody was there."
Ludwig asserts in points one and two that these communications are confidential under Rule 504(1)(a) because they were made in private to his spouse and not intended for disclosure. See id. 504(1)(a). Thus, he argues that Rule 504(1)(b) and (c) allow him to prevent their disclosure. See id. 504(1)(b), (c). The State relies on (1) the exception created in Rule 504(d)(2) that allows testimony about spousal conversations if the "accused is charged with a crime against the person of any minor child or any member of the household of either spouse," (2) the exception created in Rule 504(d)(1) that allows testimony about spousal conversations if "made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud," and (3) assertions that the conversations were never intended to be confidential. See id. 504(1)(a), (d)(1), (d)(2). With respect to the April 18 recorded statement, the State further asserts that it was voluntarily disclosed to a third party and was not made during the marriage relationship. We will, for this discussion, assume that all statements were made during their marriage, that Ludwig did not intend for Theresa to disclose the communications, and that the April 18 statement was not disclosed to any third party.
The dispute about the State's first contention centers around whether the phrase "of either spouse" in Rule 504(d)(2) modifies the phrase "of any minor child." If so, Ludwig's statements would be privileged in this proceeding because Matthew was not his and Theresa's child. Neither party has directed our attention to a case on point, and our research reveals none.
In support of its position, the State points out that the predecessor of Rule 504 is the now-repealed article 38.11 of the Code of Criminal Procedure, which read in pertinent part:
Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married . . . . However, a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under 16 years of age . . . .
Act of May 23, 1973, 63rd Leg., R.S., ch. 399, § 2, 1973 Tex. Gen. Laws 968, 972-3, repealed by Act of May 27, 1985, 69th Leg., R.S., ch. 685, § 9, 1985 Tex. Gen. Laws 2472, 2474 (emphasis added). Thus, it argues that the elimination of the words "of either" and the rewording of Rule 504 changed the way the confidential communication privilege works.
We turn to the commentators on our rules of evidence. In one, we find:
It is not clear whether the drafters intended to limit this exception to any minor child of either spouse. That limitation did appear in Article 38.11, but, under the new rule, it is possible to argue that the phrase "of either spouse" pertains only to "members of the household" and not to "the person of any minor child." Although it would not be unreasonable to read this exception broadly enough to cover crimes against any minor child, it is just as reasonable to conclude that both the "minor" exception and the "member of the household" exception are limited by the language "of either spouse." Under either reading, this exception clearly recognizes greater public awareness and concern for crimes against children and crimes within the household. A balancing test would suggest that the need for disclosure is greater than protecting otherwise confidential marital communications.
Hulen D. Wendorf, David A. Schlueter & Robert R. Barton, Texas Rules of Evidence Manual, 3rd Ed. Rule 504 (1991). In another, we find: "[A]nother important change effected by the exception is that the minor child need not be a child of either spouse or even a member of either spouse's household." 1 Steven Goode, Olin G. Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, 2nd Ed. § 504.8 (Texas Practice 1993). In support of their position, the authors state that the words "of either spouse" were included in the rule as recommended by the Subcommittee on Criminal Matters of the Senate-House Select Committee on the Judiciary to the Select Committee on Rules of Evidence in Criminal Cases in 1985 and were thereafter
eleted. Id. § 504.8 n.11. The commentators continue:
The provision reflects a perception of two, perhaps related, social phenomena. First, it expresses concern over the perceived increase in assaults, both sexual and violent, against children and the aged. Second, it reflects the increased frequency with which children who are unrelated to either spouse may be placed in the home for short periods, as with day or foster care, and the increase in the number of elderly persons and their presence as part of others' households. The new provision's obvious intent is to require spousal testimony in any prosecution for a crime against the person of a minor child, whether or not a member of either spouse's household, or against the person of a household member of either spouse.
Id. § 504.8 (emphasis added).
Ludwig cites Nelson v. State, 612 S.W.2d 605 (Tex. Crim. App. 1981), and Garcia v. State, 573 S.W.2d 12 (Tex. Crim. App. 1978), in support of his position. Both, however, were decided before the adoption of the Rules of Criminal Evidence and involved interpretations of Article 38.11. Neither is particularly helpful in our analysis.
Ludwig's pro-se brief states that Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990), cert. denied, ———U.S. ———, 111 S. Ct. 2914, 115 L. Ed. 2d 1078 (1991), "upholds every aspect and nuance of this privilege." However, Johnson holds that the state may not ordinarily call a spouse to testify when it knows that the spouse will invoke the marital privilege and that the state should not be permitted to cross-examine a spouse on irrelevant matters at a suppression hearing. Id. at 281-83.
That all three branches of government are increasingly concerned about sexual and violent assaults against children is beyond question. We understand the exception contained in Rule 504(1)(d)(2) to expand the number of cases involving crimes against children in which an accused will not be permitted to invoke a marital privilege and prevent the jury from hearing otherwise relevant testimony. See Tex. R. Crim. Evid. 504(1)(d)(2). Thus, assuming for Ludwig's benefit that these statements to Theresa were made during their marriage, were intended to be confidential, and were not disclosed to any third party, we hold that the State was entitled to the benefit of the exception stated in Rule 504(1)(d)(2) because Ludwig was being tried for an offense against Matthew Trojacek, a minor child. See id. Because the court properly admitted Theresa's testimony about the statements, we overrule points one and two.
Having overruled the points, we do not reach the State's contention that the exception for statements in furtherance of crime or fraud also applies. See id. 504(1)(d)(1). The judgment is affirmed. The remainder of the opinion is ordered not published. See Tex. R. App. P. 90.
SUFFICIENCY OF THE EVIDENCE
The sixth point in Ludwig's counsels' brief is that the evidence is insufficient to sustain the conviction for capital murder. Trial in this case began on July 8, 1991, before the date of the opinion in Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991).
standard of review
The standard of review for challenges to sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (on rehearing). "This standard is the same for both direct and circumstantial evidence cases." Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992), cert. denied, ——— U.S. ———, 113 S.Ct 1819, 123 L. Ed. 2d 449 (1993). If, in applying the standard in a circumstantial evidence case, the reviewing court finds that there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that guilt has been shown beyond a reasonable doubt. Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.), cert. denied, ——— U.S. ———, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991); Johnson v. State, 673 S.W.2d 190, 195 (Tex. Crim. App. 1984).
Under the Jackson standard, we do not position ourselves as a thirteenth juror in assessing the evidence; rather, we position ourselves as a final, due-process safeguard ensuring only the rationality of the factfinder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We have only the discretion to determine if any rational trier of fact, considering the evidence admitted at trial, could have found the essential elements of the offense beyond a reasonable doubt. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). We do not make our own myopic determination of guilt from reading the cold record. See Moreno, 755 S.W.2d at 867. We do not disregard, realign, or weigh evidence. See id. The trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not resolve any conflict in fact or evaluate the credibility of the witnesses. See Juarez v. State, 796 S.W.2d 523, 524 (Tex. App.—San Antonio 1990, pet. ref'd). The law is well-settled that contradictory testimony does not render the evidence insufficient. Mercado v. State, 695 S.W.2d 25, 29 (Tex. App.—Corpus Christi 1985), aff'd, 718 S.W.2d 291 (Tex. Crim. App. 1986). Later contradictory evidence does not destroy the probative value of earlier testimony. Id.
Sufficiency of the evidence must be determined from the charge given, which means the entire charge. See Jones v. State, 815 S.W.2d 667, 668 (Tex. Crim. App. 1991); Nickerson v. State, 782 S.W.2d 887, 891 (Tex. Crim. App. 1990). If the State does not object to a jury charge that enhances its burden, sufficiency of the evidence will be measured against that charge. Fee v. State, 841 S.W.2d 392, 396 (Tex. Crim. App. 1992).
In applying the "reasonable alternative hypothesis" analysis, "[t]he correct procedure involves accepting the inculpatory circumstances . . . and then asking if there is a reasonable hypothesis other than guilt which also would account for such circumstances." Gunter v. State, 858 S.W.2d 430, 439 (Tex. Crim. App. 1993) (citing Girard v. State, 631 S.W.2d 162, 164 (Tex. Crim. App. [Panel Op.] 1982)); see also Green, 840 S.W.2d at 401. For a reasonable hypothesis to be outstanding, there must be no competent evidence to the contrary. Nilsson v. State, 477 S.W.2d 592, 597 (Tex. Crim. App. 1972). For an outstanding hypothesis to be reasonable, it must be supported by some credible evidence. Criner v. State, 860 S.W.2d 84, 86 (Tex. Crim. App. 1992); Nilsson, 477 S.W.2d at 597. The reviewing court must explain how the record raises the issue of the existence of an outstanding reasonable hypothesis to support an inference other than the guilt of the accused. Criner, 860 S.W.2d at 86.
the evidence
Viewing all the evidence in the light most favorable to the prosecution, the record contains inculpatory circumstantial evidence.
family members
Theresa Trojacek, Ludwig's wife, testified that she graduated from veterinary school in 1979. She met Ludwig in 1981, married him in 1984, had one son in 1985, and was in the process of getting a divorce in 1990. They worked together at a veterinary clinic that they owned in League City and later sold for over five hundred thousand dollars. She testified that, although she wanted to resume a practice and Ludwig did not, they decided, after studying the economic feasibility, to open another clinic in Katy. She said that her father, who retired from Ennis Automotive and died in 1988 at age 64, owned about 160 acres in Ellis County, the "farm," on which her mother still lived. She said that in 1987 Ludwig started bringing up the farm more and more, complaining that "I needed to start showing some interest in the farm," that "Joe was getting more of the farm than [my sister] and I," and that "Joe was the prodigal child." She said that she was not concerned because her "mother and dad had always been fair when they gifted us things." After property was exchanged within the family, which Ludwig thought "was not a fair deal," he "demanded" that she ask her father for an additional $5,000.
Theresa said that in March of 1988, after they had moved to Katy, he brought the subject up again and "got very angry." When asked how he expressed that anger, she said:
We were in the master bedroom and he again brought up Joe being the prodigal child, and he was sure that Joe was going to end up with all the property while I sat back and did nothing to help get my property, get my proper inheritance. He got very angry . . . and he threw a VCR tape at the door where I was standing. It hit the door. I was standing very close to the door. He started ripping sheets off my son's bed.
On another occasion, Ludwig got angry and threw a television set and a living room chair because a woman from whom he had bought property and whom he was supposed to help "demanded so much of his time and work." He also got angry at Theresa over her accepting night calls and over computer records. She said that he would leave after these "major blowups" and return "hours later and everything was fine." They did not discuss the "blowups" later because he would apologize and she did not want to anger him again. She said that "at one time he's been working with a psychologist on his temper."
In 1988 after her father died, she and Ludwig attended a meeting at Joe's office. "Joe had wondered at that time what I thought of -- since [my sister] and I were not living on the farm, he had wondered if what I thought of him getting the farm when the time came for things to be gifted or divided up." She said that she told Joe that she was not sure about her plans, that she might want some of the land on the road. She characterized the meeting as "friendly." Later, Ludwig would ask, "Didn't I tell you Joe was going to get the farm . . . and let you and [your sister] be happy with just a little bit of cash? Didn't I tell you that?" He began bringing it up about every two weeks.
Theresa said that in 1989 she received a legal document concerning her father's estate that required her signature. When she showed it to Ludwig, he became "real antsy about the situation," which involved a gift from her grandmother, Annie Trojacek, to her mother. She said:
That initiated him to start demanding I get an appraiser to go check the value of properties in Ennis, and I, again, just -- we were working on building the clinic, and I had a lot of other responsibility in Katy, and worrying about acreage in Ennis just wasn't a concern of mine. And he kept insisting that I get an appraiser and have it appraised, so I could show everybody the value of the property and show them, particularly mother, at that time, how [my sister] and I were getting screwed and Joe was getting this 60 acres.
She said that saving taxes was a big issue with Ludwig and that he would make suggestions to her mother about making gifts of property "so that she would become -- be worth nothing or indigent so the State, when she got to the age that she needed to be in a nursing home the State would take care of her and there wouldn't be all those inheritance taxes that she would have to worry about." She said that she became very uncomfortable with that type of conversation that "would go on and on for hours." Primarily as a result of a confrontation between Ludwig and her mother and Ludwig's "increased obsession" with her family's property, Theresa separated from him in April of 1989 and filed for divorce on May 10.
After their separation, Ludwig was told about the gifts that her grandmother had made and, without Theresa's knowledge, hired an attorney to seek a guardianship for her grandmother. The family found out about it when he appeared on her mother's property, with an appraiser, and handed Joe the application for guardianship.
During the separation, she first met Ludwig's mother and brother when they came to the clinic for a scheduled child-visitation period. She had not met them from 1981 to 1989, so Ludwig and his family were estranged for at least eight years. She said that his family had "had a falling out . . . over an acreage that [Ludwig] -- a camp house on five acres of land in Sealy or outside of Sealy" and that they had repaired their relationship while she and Ludwig were separated.
Later that summer, after counselling, Ludwig and Theresa started spending more time together. Under an agreement they worked out, Theresa started working at the newly-opened clinic in Katy as a salaried employee. She said that they were attempting a reconciliation and that, as far as she knew, Ludwig was doing nothing about the property in Ennis. The guardianship had been dropped. After he apologized for having interfered with her family's business and for filing the guardianship, Theresa "assumed that he was through with things in Ennis."
In November, they bought a house in Katy and moved in together. Theresa said, "It was almost as soon as we moved into that . . . house, Ennis was coming up again." She said that, instead of calling Joe "the prodigal child," he said "that son-of-a-bitch and he's stealing land from you and . . . you're not getting your son's inheritance." On December 8, Ludwig "fired me from the clinic and demanded that I give him the keys to the clinic back. He said that if he couldn't trust me to handle my affairs in Ennis that are worth hundreds of thousands of dollars, how could he trust me with his clinic. . . . I was very upset. I gave him the keys back." Later that day, she had a miscarriage. Early the next day, after she went home from the hospital, he began discussing the Ennis property "over and over and over again, and what I was taking from our son, what I was keeping from him."
Ignoring her firing, Theresa went back to work at the clinic. Ludwig did not remind her that he had fired her, and "everything was calm for a couple of days until it came up again." After that, she said that she "would pacify him and agree with him" so that he would not "be back up in Ennis bothering mother and Joe."
Theresa said that, by Christmas of 1989, Ludwig had added her Uncle Don's name to his complaints. "Joe and Don committed fraud in the way that they got, in his opinion, got the property. Joe and Don were having these secret meetings."
In March 1990, Ludwig came to the clinic and demanded that Theresa go with him for a discussion. When she refused because a client was in the clinic, he threatened to have her committed to a psychiatric hospital—"I can get you committed just like that"— and said "any woman who cares more about a ten dollar rabies shot or a dog than her son's inheritance and . . . losing hundreds of thousands of dollars has to be committed." After getting the client out, they went to an 83-acre tract of land that he later purchased.
About two weeks later, Ludwig went to the clinic "angry and upset . . . more angry than I'd ever seen him. There was more intensity." After an argument about closing the clinic, she called Ludwig's brother, Olin, and asked him to come talk to Ludwig because he "was saying he was going -- very -- he was saying he was going to have to take care of things in Ennis himself, and he -- there was something in his -- he was different. He was angrier than normal. He was -- I saw something different is his eye that really scared me." She said it was the first time that she feared for Joe's physical safety.
The next day, they went to the 83-acre tract again and discussed "Joe and Ennis." Theresa testified:
Q. What did he say?
. . .
A. He started saying that because I wasn't doing what I needed to do in Ennis, and he was going to have to take care of it himself, he said that he was just going to have to take Joe out.
Q. What did you take that to mean?
A. I knew what it meant. After what I'd seen the day before in his -- I knew he was going to -- that he was saying he was going to kill him.
Q. Did he mention any specific way he would do it?
A. He said -- he told me that I didn't know how easy it would be for him to be behind -- I think he said the big green farm tractor or a round hay baler or the metal barn down below Joe's barn, and when he came by he'll just blow his brains out.
Q. Did he say what he would use to blow his brains out?
A. He said he would have a shotgun.
Q. Did he seem to know anything about whether or not it would be difficult to get on Joe's property?
A. Well, he made the comment that I didn't know how easy it would be for him to do that despite Joe's security system and that's --
Q. How would he have known about that? Had you been up there recently?
A. The only security system I was aware of was an indoor alarm in Joe's house, burglary alarm, I guess, and that's all I knew about at the time.
Q. Did he say anything about your mother?
A. Yes.
Q. What did he say about her?
A. First mentioned Joe and Matt and then he said --
Q. What did he say about Matt?
A. After he said that he'll just -- he just have to take Joe out, were his words, he said, and I may just have to take Matt out, too.
Q. Did he say why he might just have to take Matt out, too?
A. No. Then he brought up mother.
Q. What did he say about mother?
A. And said that he would take her -- after he took care of mother, that he would kill me. And he also in the same conversation had said he was going to take [our son] and go up there and then --
She said that Ludwig was "more angry and intense than he'd ever been before," that he "spit two big globs of spit in my face," and that he called her a "bitch" and the "lowest scum of the earth."
Theresa said that she called Joe to tell him about the threats, but she did not tell her mother, who was in Houston visiting a friend and whom she saw later that day. She said that she went to the Harris County Sheriff's Office, "hoping they would put [Ludwig] somewhere," but they were not helpful at all. She also went to the Family Violence Center of the Harris County District Attorney's office, but "the end result is they could do nothing." She also testified that Ludwig had been threatening to report Joe and her mother to the Internal Revenue Service "for undervaluing Daddy's part of the farm," so that he could claim a reward. After the threats, she reinstated the visitation schedule in the still-pending divorce and did not return to their home.
In April, while visiting Joe and Kitty, Theresa saw a steel fence post next to their driveway. Later, during a telephone conversation with Ludwig that she taped, he told her to "quit accusing him of leaning that steel post against Kitty's van." Upon realizing that the post was the one that she had seen, she took the tape to Joe, met him outside his residence, and played the tape for him.
Theresa said that she saw Ludwig on May 30 when the divorce court entered agreed temporary orders concerning their property. On June 14, a Thursday, while staying at her cousin's home, she found out that Joe and Matthew had been killed. She attended the funeral on Monday and went back to court in Houston on Friday to gain control of the clinic, the other properties, and the records. Later, she found shotgun shells at the clinic and discovered that some guns that had been wrapped in a pink blanket were missing from their residence. At the suggestion of her attorney, she informed the Ellis County Sheriff's Department about the shotgun shells and gave permission for a search of the clinic.
Mary Catherine Trojacek, Theresa's and Joe's mother, testified about her use of the farm near Ennis. She said that in the spring of 1989 Ludwig became upset when he found out that her mother-in-law, Annie Trojacek, had rearranged the way her property would be left at her death. She said Ludwig told her that her husband's will "was no good and he was going to break it and ruin the Trojacek family name." She testified about Ludwig's coming to her property with an appraiser and said that he was around her property "quite often" after that. She would see his "distinctive red and cream truck with a black tool box on it" as he was "driving up and down [Highways] 34 and 660." She believed that she saw him in a different truck that pulled through a service station in Ennis in March or April of 1990—"he kind of had his hand over his face." She said that every time she saw Ludwig he would volunteer advice about her property to her "as long as I would listen." When she heard about Ludwig's threats against Joe, she dismissed them because "nobody would do anything like that."
Kitty testified that she and Joe married two years after he graduated from college and that he worked at Ennis Automotive during all of their marriage. She said that a problem started between Joe and Ludwig "over the land" and, after that, Ludwig was not welcome in their home. She said, "He would drive up and down our road at any point during the day, during the week, on the weekends. We would see him in his truck going back and forth on the road." At the time he was driving a "cream [colored] truck with like reddish color in the middle, two-tone truck." She said that in May of 1989, they were returning from a wedding when Ludwig started following them and followed them towards their home, stopped when they stopped, and followed them back toward town until they enountered a deputy sheriff. After the deputy received a call, they "went on home without an escort." The next morning, she met Ludwig "coming down Highway 34 toward our house." Later, he walked in front of her car as she left her church and passed her again on the road home.
Kitty said that in April of 1990, she found a fencepost leaning against her van and, assuming that a neighbor—Keith Spaniel—had placed it there, laid it on the ground. She said that she never told anyone about it, other than a girlfriend, and later found out that Keith had not left it there. She said that she learned of the severity of the relationship between Joe and Ludwig in 1989 and "was petrified." A "perimeter beam" was installed at their residence after Theresa told Joe about the significance of the fencepost incident because "we knew it for a fact that he had been on our property, that he had been watching us, that he had been that close to our house, and Joe felt like we needed more security, that we needed to know if somebody could get that close." She said that the security device created many false reports and "became a nuisance," so they turned it off. A phone was installed in her van and a security gate installed at the end of their driveway. After the threats were made they prepared wills, and Joe took out credit life insurance on the residence.
Kitty said that on June 14, 1990, they had dinner at Mrs. Trojacek's home. Joe left for about an hour or so, and she then followed him home as he drove a tractor. They picked up Matthew at Mrs. Trojacek's, went to town for ice cream, and returned home. Matthew and Joe were watching television while she prepared their two daughters for bed. She said that she was in bed, reading, when she heard a "loud pop." She "knew it was a shotgun blast" and "started screaming for Joe to answer me." About ten seconds later, there was another blast. She left the girls in her bedroom and looked down the hall where she "could hear the door popping" and see glass all over the carpet. She went to the den and could see Joe's head on the couch but could not see Matthew. She returned to her bedroom and dialed 911. When the officers arrived, she let them in; later, she heard an officer telling her mother-in-law, Mrs. Trojacek, that Matthew was dead.
neighbors
Steve Fallen, a resident of Ennis who worked at Ennis Automotive, testified that he worked closely with Joe on a day-to-day basis. He said that several times a month Joe would discuss with him a problem with regard to some family matters. When Joe asked for advice, he advised him to get an outside dog, offered to loan him a gun, and reminded him that the Ellis County Sheriff's Department had an office in Ennis in addition to the main office in Waxahachie. He said that they increased the security at the business by installing additional video cameras and recorders and limiting access to the premises. He concluded that Joe was "very frightened for his safety and [that] of his son." He also said that he knew of no one at Ennis Automotive or in the community of Ennis or anywhere else that had a grudge against Joe or Matthew.
Keith Spaniel testified that he lived about three miles from the Trojacek residence and had worked there doing farm labor. He had worked on the Trojacek farm with Ludwig and said that Ludwig was more interested in talking about what was going on at the farm than in working. Ludwig criticized Joe's running of the farm and asked questions about the ownership of the cattle and farm equipment. Spaniel said that he made security suggestions to Joe and started carrying a rifle around May of 1989. He also built a set of steel gates at the end of the driveway and a pipe fence around the front of Joe's house. He said that he saw Ludwig driving past the Trojacek residence ten or twelve times, mostly on weekends, that he had never seen him visiting at the residence, that he had seen him at a motel in Ennis on Memorial Day weekend of 1989, that Joe was "concerned for security around the house," and that he, Spaniel, had told Joe that he would shoot Ludwig if he ever saw him on the place "because of the certain threats made by the defendant on Joe Trojacek and his son, Matthew."
Wayne Lee testified that he owned The Electronics, an installer of security systems, and that he installed a basic system in the Trojacek residence in 1987. He said that in 1990, he installed a system that used external infrared beams surrounding the house that would "pick them up" if someone walked into the yard, describing it as a very uncommon system. He had installed a security system in one truck and a van that Kitty drove, put a car phone in the van, and installed an intercom system and remote opener on the gate to the residence. He and Joe talked about other types of security devices. He said that he installed a security system at Mrs. Trojacek's residence and put a tap on her telephone at her request.
Stuart Hamilton, a surveyor who lived across the highway from Mrs. Trojacek, testified that he had attended a lodge meeting on Highway 34 outside of Ennis on June 14, 1990. After he left the meeting at about 9:00 p.m., he saw a dirty dark Chevrolet pickup on Highway 34 driving 35 to 40 miles per hour. He said that he thought the vehicle contained one male. He followed it until it turned left on Farm Road 660.
Joe Crase testified that he lived on Farm Road 660, about one-quarter mile from the Trojacek residence. On June 14, 1990, he and his wife Cynthia were putting out "yard-sale signs." They travelled south on Farm Road 660 to its intersection with Highway 34, put out signs, then retraced the route to their home. He said that he saw a new Chevrolet pickup, dark blue or black with tinted windows, parked on the same side of the road as the Trojacek residence at Village Creek, which intersects Farm Road 660 between the Crase home and the Trojacek residence. He said he thought it was a regular-cab pickup with a short bed. He did not see anyone around the truck and saw it again, passing by his home at about 10:00 p.m., "going fast."
Cynthia Crase testified that she saw a "new black Chevrolet truck" parked on the east side of Farm Road 660. She described it as "an extended cab, short bed truck." She also said that the truck passed their home about 9:45 or so "going real fast."
Gary Skrivanek testified that he lived on Farm Road 660 between Highway 34 and the Trojacek residence, about five miles from the latter. He said that he was going home on Farm Road 660 around 9:15 or 9:20 at night on June 14, 1990, and saw a "new model black extended cab Chevrolet pickup" parked on the east side of the road at Village Creek. He said he saw no one around it and took notice of it because he knew no one who owned one like it.
law enforcement officers
A police officer for the city of Ennis, Bill Watson, testified that he was dispatched to the Joe Trojacek residence on June 14, 1990, accompanied by Sergeant Grady McCall. He said that he went around to the back of the house, saw a hole in a glass door, and returned to the front where McCall was talking to Kitty, who was hysterical. She let them inside. They found Matthew, dead from facial injuries, lying on the floor of the den. Joe was "sitting on the floor leaning back on the couch with his head tilted back." He had blood on the left side of his head on the neck area and coming down his left side. Watson said he could not tell whether Joe was conscious or not, but that he "gasped twice for air." He took no further part in the investigation because it was within the county's jurisdiction.
Texas Ranger Robert Medierra of Houston testified that he participated in the investigation. He said that about midnight on the evening of June 14 Ranger George Turner, stationed in Cleburne, requested his assistance in locating Ludwig, who was a suspect in a double killing in Ellis County. He went to the clinic in Katy and, finding no activity, went to the land near Sealy, a location that Ranger Turner had given him. Persons living on the property told him that they had not seen Ludwig in a couple of weeks, so Ranger Medierra went to Ludwig's mother's home. Failing to find him there and having received additional information about the residence where Ludwig and Theresa lived, Medierra went to that address and found no activity. Medierra said that around 10:00 a.m. on the 15th he received a call from Ludwig's attorney, who "wanted to know what we wanted with his client." He also received information from an informant that Ludwig would be going to his attorney's office and "from there they were going to go to Galveston." He said that the informant said that the purpose of going to Galveston was for Ludwig "to commit himself to the mental hospital there in John Sealy." Medierra and two other Rangers went to the attorney's office and, finding Ludwig there, arrested him. When the attorneys refused to allow Ludwig to give permission for a search of his "brand new truck," the Rangers requested that it be secured behind a fence.
Ranger Stan Oldham testified that he accompanied Rangers Medierra and Prince to the office where Ludwig was arrested. He said that after they were refused permission to search the truck, they asked if they could "look through" it. When told that they could not, they noted the color of the truck and attempted to get the vehicle identification number because it had a dealer's license plate. They could not see into the truck because of the heavy tinting on the windows. He said that the truck was "extremely clean" and appeared to have been cleaned very recently because there were no "bug splatterings or anything like that." He noted that dark vehicles pick up dust, but the truck was "real clean." During the next week they tried to locate the truck but were unable to do so. He said that Olin Ludwig told Captain Prince that the truck had over a thousand miles on it. Oldham testified about a search of the clinic in Katy and of the residence. They discovered no weapons at either location.
An investigator for the Ellis County Sheriff's Department, James Whitely, testified that he arrived at the Trojacek residence at about 10:00 p.m. on June 14 and took photographs of the crime scene, which were admitted into evidence. He also identified photographs of the exterior of the residence. He said that the lighting in the den was "average." He described in detail the location of shotgun pellets that he recovered from Matthew's body, from the couch, from the den floor, and from a china cabinet on the other side of a den wall. He also recovered two spent shotgun shells outside the den door—admitted into evidence as Exhibits 88 and 89—and "shotgun wadding" from the den floor inside the door. Whitely testified that he returned to the residence the next day and found a footprint 75 feet or so from the house but could not make a cast of it because of a lack of detail. He also found tire tracks in a grassy area of a road nearby.
Ronnie Harris was the Lieutenant of the Criminal Investigation Division of the Ellis County Sheriff's Department and was in charge of the investigation. He testified that he arrived at the Trojacek residence on the evening that Joe and Matthew were killed at about 10:00 p.m. and stayed until about 1:00 a.m. the next day. He examined the alarm system in the residence and one that "was set up around the perimeter." He saw the two shotgun shells during his walk around the house. He said that they had only one suspect—Ludwig—and that he returned and searched the general area the next day until he left for Houston to retrieve Ludwig, who had been arrested. He testified that when Ludwig was admitted to the Ellis County jail he noticed "a bruise. It was believed to be a shotgun hickey." He identified pictures of the bruise that were admitted into evidence. He said that he had been familiar with the effects on the body of shooting a shotgun since he was six years old and had observed different types of ammunition and different gauges of shotguns having differing effects on the body. He stated that the bruise on Ludwig at the time he was admitted to the jail was consistent with the results of shooting a shotgun. He also said that Ludwig's clothing was sent to the Department of Public Safety Laboratory in Austin.
Harris participated in two searches of the clinic in Katy. On the first occasion they found nothing, but after Theresa gave them additional information, he returned and retrieved shotgun shells—admitted into evidence as Exhibits 64-87, a shotgun plug, a knife, a brown leather holster and belt, and eleven baseball caps from a cardboard box in a storage room. He identified a photograph of Ludwig taken at the time of his arrest in which he was wearing an identical cap. The pink blanket that Theresa had earlier testified held guns was also found at the clinic. He said that the shotgun shells were submitted to an Alcohol, Tobacco & Firearms laboratory for testing.
Based on his observations and those of other officers, Harris said that his opinion was that the person who fired from the back yard into the Trojacek residence had a clear view of Joe and Matthew, but he said that it was "possible" that the assailant did not see Matthew.
Texas Ranger Captain Bob Prince testified that he was stationed in Houston and was called upon to assist Ellis County authorities with the investigation. On June 14, he arrested Ludwig at a law office in Houston. He requested permission to search Ludwig's pickup, but the attorneys refused, saying that "they would maintain the pickup there at the office." Later, Olin Ludwig called and said that he had the pickup in his possession and, during a conversation about inspecting the truck, that it had "somewhere in the vicinity of a thousand miles" on it.
Ranger George Turner testified that when he arrived at the Trojacek residence Matthew's body was still there. He walked the area that night with a flashlight and returned the next day. He said that his first visit to the clinic and residence in Katy was specifically to search for a shotgun, but he found only business cards related to firearms and an instruction book for a Mossberg 12-gauge pump shotgun. On his second visit to the clinic, nothing was found, but he learned later that Harris had retrieved a box. He said that he was a certified firearms instructor for the Department of Public Safety and that a shotgun not held properly could leave a "shotgun hickey" on the shoulder of the shooter. Turner testified on cross-examination:
Q. Isn't it true that you had made up your mind on June 14th that Mr. Ludwig was the murderer, that he was educated, he's a veterinarian, you believed that he was smart and he wouldn't do anything stupid?
A. No. Knowing there was never any shred of anything that pointed to anyone else other than your client, Mr. Ludwig. So if you're asking me, did I make up my mind that he was the killer, most assuredly I did and have.
other witnesses
John Compton testified that he worked for Ludwig at the League City Animal Clinic. In 1990 he took Ludwig to Ennis in his truck. After initially denying that Ludwig said anything about being recognized in his own truck, Compton testified that he told law enforcement authorities in October of 1990 that he and Ludwig took his truck to avoid any possibility of anyone recognizing Ludwig's truck. During the trip, they purchased a set of walkie-talkies, a pair of binoculars, and two flashlights. He said that Ludwig told him that the binoculars were to get a closer look at his mother-in-law's house to see how his son was doing, the walkie-talkies were for "communication and to have some backup," and the flashlights were to find "a pathway or something back to the truck" if it got dark. When they got to Ennis, they drove past his mother-in-law's house, then by another house that was "more or less in town." Ludwig did not use the binoculars. After stopping in Ennis, they drove back past the mother-in-law's home and returned to Houston.
Willie Morillione operated a rental business next door to the clinic in Katy. He testified that Ludwig visited the rental center during the construction of the clinic and, at times, discussed his wife's family. He stated, "I think there was some animosity there towards her brother and toward the mother."
Ann Morillione testified that she had last seen Ludwig on June 14, 1990, at their rental business. She identified a sales-ticket to Ludwig for a pair of gloves and said that she recalled his making the purchase. She said that, contrary to most other occasions on which he would take a sales receipt, he crumpled up the receipt for the gloves saying, "this was not for [a] business purpose, it was personal use." She said she saw him leave the clinic in a black truck and thought, "Ron has a new truck." She said that she remarked to Willie that Ludwig was unusually quiet that day.
Kyle Tomme testified that he began working at the veterinary clinic in Katy in February or March of 1990 but only worked there for about a month because he "had become uncomfortable with some of the arguments and family matters that were going on around the animal clinic." He said that he was being caught between Ludwig and Theresa, and after Theresa stopped working, Ludwig continued discussing family matters and the divorce with him. Asked who started the arguments, he said that Ludwig "would lead them on" and would "just [nag] and pick about the situation and start talking with her about it." Ludwig "told me at one point after she left that if she didn't keep their nose out of his business that he would kill them." Tomme took "them" to mean the "mother and brother of Theresa" because "that's always who the arguments were mainly directed about." Tomme further testified that, because his own aunt had been raped and he had expressed to Ludwig a desire to "hurt" whoever did it, Ludwig "explained to me how to kill somebody, how to use a shotgun because you could claim temporary insanity."
James Perry, the operator of Houston Moving Service, identified a business record that showed that Ludwig had moved a rolltop desk, two child's riding toys, a desk chair, a portable TV, and a child's table and chair from the residence in Katy to his attorney's office in Houston on June 14.
Fred Wenck said that, on August 2, 1975, he was working at Tri-State Sporting Goods in Bryan. He identified a "firearm transaction record" showing that Ludwig bought a Remington Model 11 12-gauge shotgun on that date.
Monte Marshall worked for Lawrence Marshall Chevrolet, a dealership in Hempstead. Marshall testified that he sold and delivered a black 1990 half-ton Chevrolet extended-cab pickup with deep-tinted glass in the back window to Ludwig on June 11, 1990.
Betty Jo Page testified that she met Ludwig at a dance hall in Brenham in May of 1990. She said that they went out to dinner after that, and she worked for him at the clinic for two days. In June, she went with him and his mother to Lawrence Marshall Chevrolet in Hempstead when he purchased a Chevrolet pickup. On June 13 they went to dinner, and on June 14 she found a check for one month's wages in her mailbox at home. At about 8:00 or 8:30 p.m. on the 14th, she called his residence, but his niece said that he was not at home.
A used-car dealer in Houston, Harlan Lane, testified that in July of 1990 he purchased a black Chevrolet truck, extended cab with a short bed with a red interior and 1,000 to 1,300 miles on it, from attorney Dan Gursin for $13,000. He said that he did not remember the owner's name, that he understood that the owner was in prison, but that he received a title signed by the owner. At the conclusion of Lane's testimony, the court took judicial notice that Dan Gursin had been an attorney of record for Ludwig in this case and that he was no longer an attorney in the case.
medical witnesses
Charles Minor testified that he was a paramedic with the East Texas Emergency Medical Services. He said that when he went to the Trojacek residence he found a male sitting on the floor leaning back against a couch and a child on the floor. The male was alive, but unconscious. The medics stabilized him and transported him to a hospital in Ennis. The child was dead.
Dr. Jeffrey Barnard testified that he practiced in the field of forensic pathology and was the Chief Medical Examiner for Dallas County. He stated that he performed an autopsy on Matthew and explained its function. His examination revealed that Matthew died from a shotgun wound to the head, from which he recovered three pellets. He said that the path of the shotgun pellets was "from front to back and it was from right to left. It was -- it really kind of varied from almost a completely horizontal wound to slightly upward." He had no definite opinion about the range from which the shotgun had been fired. He characterized the injury as "rapidly fatal" and said "[a]fter this impact from the shotgun wound, the child would drop immediately."
An employee of the medical examiner's office in Dallas County, Dr. Emily Ward, testified that she performed the autopsy on Joe, who had sustained three separate injuries to the head. Her opinion was that, because one of the shots had gone "right through the brain stem," the injuries would have been immediately incapacitating. She also found several small injuries to the leg areas. She recovered two shotgun pellets from the head and two from the thigh.
Dr. Jean Guez testified that she was a practicing psychologist in Houston. She said that she had been appointed by the 257th District Court of Harris County to "do a psychological evaluation of [Ludwig and Theresa] and to make a determination as to the best interest of the child in a divorce and custody case." She said that Ludwig voluntarily came to her office to be tested on June 6, 1989. Her data indicated that Ludwig was "a very bright man, high above the average" but had a "tendency to think about the world differently than it sometimes was." She explained:
He was very meticulous and capable of looking at very small details. As such, he would sometimes take small pieces of information and reformulate them into a different puzzle that would render a different conclusion about what was happening or what he was seeing and experiencing. And his ability to do that was supported by his high intelligence, such that the smarter you are, the more intellectual power you have. The greater ability to offer some discrepancy and information.
She said that he takes "information and he chooses selectively that which supports a certain viewpoint or perception and then he continues along with that perception, even with great information to the contrary" and that there "may be a tendency to jump to conclusion as well."
Dr. Guez acknowledged that Ludwig would look upon certain people as a threat. She said that, at the time she saw him, Ludwig perceived two categories of threat: his son's future well-being due to his failure to receive a fair share of land being divided up as part of an estate and a belief "that his brother-in-law had hurt his son." She said that, although he was concerned about "allegations that were made regarding whether he had a violent temper," in one of the sessions in August and September of 1989 he "recounted that at the time that he found out about his son being hurt by his brother-in-law, that he was so enraged and so concerned about the well-being of his son, that he had decided that he would kill his brother-in-law in order to keep that from happening again." She said that "his plan included setting up a meeting with Joe on a remote road in his pickup and a shotgun." She said that she did not feel a duty to warn anyone because "it was not an imminent plan." She was also satisfied that there had been no abuse of Ludwig's son.
Dr. Guez also testified that Ludwig's general feelings toward Joe were that "he was being cheated by Joe and Theresa was being cheated by Joe and therefore that his son was being cheated by Joe in terms of the land. . . . He felt [it was] a horrible miscarriage of justice, unfair, selfish, and designed for Joe to get the majority of the land rather than the two girls in the family." Regarding her observations of the way Ludwig perceived threats to his son, Dr. Guez testified:
Q. So if he perceived something as a threat to his control or a threat to what he wanted to do for his son, how did he deal with that?
A. Well, the threat comes first and the control comes afterwards. It's not that things are a threat to his control, they're [things] that are a threat to his son and he would want to exercise his control over the outcome.
Q. And what sort of effect did it have on him if it was something that he couldn't exercise control over?
A. Well, that increases the threat considerably and his ability to control. And when the scare increase then he goes along a continuum.
Q. What do you mean by that?
A. When you think of scare on a line from not very much to a lot, it starts out as being a little scared a little worried. It moves as it gets more intense along this line to what we call obsessive, which means that you become preoccupied with something and you think about it a lot and you [chew] on it and you dream about it and you just -- its just present all the time. The next step along this line is paranoid. [P]aranoid thinking is an extension of the obsessive thinking which means that the scare takes on some force against you. People are after me, they're after my money, they're after my whatever, my wife, my dog, after my practice, after my son, after something. Somebody's out to get me or out to get my son, in this case, and the thinking becomes very vigilant against the threat that anybody could be a potential threat and is likely to do something to take advantage of that person. The next step if it gets very extreme is delusional.
Q. What do you mean by delusional?
A. Delusional means you come to conclusion about reality that things that are happening are not happening.
Q. Was that happening with this defendant?
A. In my view from time to time he would start out being worried as we all are, and go at different times along this continuum. He was not always delusional or paranoid or obsessive or scared, but it would go along this line, depending on how personal the threat was and how much feeling he had associated with the threat.
Q. Were you able to reach a conclusion as to how personal this threat was to this defendant?
A. In my view the greatest distortion and the greatest likelihood of his thinking inaccurately occurred relative to his son, which was his most prized possession, as it were, most valued part of his life.
She said that Ludwig was capable of forming the intent to kill a child if he were on the delusional end of the continuum and felt that the child was that big a threat. "[Ludwig] has a potential for a violent temper." In response to being asked whether he was capable of committing murder, she said, "If he was believing that the threat was real to him, I think he would do anything to protect his child."
John O'Neil had been a firearms tool mark examiner for the Bureau of Alcohol, Tobacco and Firearms for four-and-one-half years. He also worked for sixteen years as an examiner for the Metropolitan Police Department in Washington D.C. O'Neil said that he had testified 445 times as a firearms expert. He identified the two shells found outside the Trojacek residence—Exhibits 88 and 89—and twenty four other shells—Exhibits 64 through 87—as items that he had examined by microscopic comparison to determine if they were all fired in the same shotgun. He said that his examination revealed that the markings on eighteen of the twenty-four shells, all the same brand as Exhibits 88 and 89, were fired in the same shotgun as Exhibits 88 and 89 and that the markings were "distinctive to the point of individuality that we could exclude any other shotgun" as a possibility. He said that the "class characteristics"—the location of the firing pin impression and the relationship of the extractor, ejector markings—indicated that the shotgun was either a Remington or a Mossberg. The jury viewed a videotape of O'Neil making the comparison while he described what was being shown. O'Neil also identified photographs of his microscopic examinations of the shells.
O'Neil testified that he had participated in approximately 2,400 homicide investigations in Washington, D.C. over a sixteen-year period and had given expert testimony in "terminal ballistics." He explained how the pellets fired from a shotgun move through the air, what they do on encountering another object, and the possible effects of shooting through glass. Answering a hypothetical question that assumed the facts revealed by the investigators and the medical examiners, he said:
Taking all that into consideration, the adult victim with the spreading pattern being to the head and to the leg was the first shot, that pattern being spread by breaking the glass. The second shot to the child being a very tight pattern striking in the mouth and exiting was a very tight pattern being the second of the two shots.
Asked whether he had an opinion about how the assailant could have accomplished the second shot, he said:
Given the same set of circumstances, in order to see the child through the hole that was created by the first shot, it would necessitate moving forward and down to see through that hole then the second shot could be fired, there is a difference in the angle of firing between the first shot striking the adult and the second shot striking the child.
He also said that, in his opinion, the distance from the muzzle of the weapon to the child was "no further than nine feet" and perhaps "closer by a foot or two" and that the positions of the child and adult victims would have required "distinct separate aim points and shots." During cross-examination, O'Neil said that there are twelve pellets in a "12-gauge double ot buck magnum shell" and that firing one "would leave a bruise on me."
defense testimony
The only defense witness was Dr. Robert Jordan, a medical doctor who is board certified in anatomic and clinical pathology and forensic pathology and was at the time of trial the Deputy Medical Examiner in Galveston County and a private practitioner. Jordan testified that he had been furnished measurements from the scene and had examined the autopsy reports and the pictures of the scene and of Ludwig. He said that the mark on Ludwig when he was arrested was "not a bruise or contusion." He further said that autopsy reports, police reports, and pictures—the information relied on by O'Neil—do not give enough information to "draw any conclusion regarding whether the killer or assailant, what he saw in that room at the time he fired." Basing his opinion on additional information, such as the distances he was provided and the injuries sustained by the victims, Jordan testified:
Q. What is the possibility of the person who shot a 12-gauge shotgun, what is the possibility of that person seeing into the house at night, when shots were fired, the possibility of seeing Matthew Trojacek?
A. I don't think he saw him.
Q. Is there a possibility that he did?
A. Yes.
Q. Is there a possibility that the person shooting these shots didn't see him?
A. There is.
In later testimony, Dr. Jordan said:
Well, remember, I said it's possible he did see him or it's possible he didn't. The reason I'm saying that he didn't see him was due to the fact that the first round caught both individuals at a level where the child's head would have been, if the child were behind the father. And if he peeked out to see what was going on, he would have gotten almost the full charge right in the face. But there was enough pellets to the periphery that also caught the father in the thigh.
He criticized the opinions given by the medical examiners and disagreed with O'Neil about the effects of the glass door on the dispersal of the shotgun pellets.
Jordan was cross-examined extensively about his opinion concerning which shot hit which victim. He accepted the fact that the interval between the two shots was ten seconds and verified that he had not visited the Trojacek residence. On re-direct, he acknowledged that his opinion was "an educated guess based on facts that [had] been put to [him]."
conclusion
We go to the determination of whether there exists an "outstanding reasonable alternative hypothesis." See Gunter, 858 S.W.2d at 438. Gunter describes the process of analysis:
Thus, if exculpatory aspects of [the evidence] are fully consistent and in harmony with all of what would otherwise appear to be purely inculpatory circumstantial evidence presented by the State, then under Carlsen and Butler, both supra, we would be constrained to hold the evidence insufficient. If, on the other hand, exculpatory aspects of appellant's version of events necessarily contradict or conflict with inculpatory inferences drawn from other circumstantial evidence presented by the State, and all of the evidence viewed in the light most favorable to the prosecution would rationally support a jury verdict of guilt to a degree of confidence beyond a reasonable doubt, we must hold the evidence sufficient.
Id. at 439.
Reviewing the record of the trial, we find no suggestion by Ludwig of a reasonable alternative hypothesis that can be drawn from the evidence. Counsel argued that that case was built on conjecture and suspicion, and that Theresa lacked credibility; they urged the jury not to accept Dr. Guez testimony; acknowledging that the shotgun shells were the "link-up to the case," they argued that "something is wrong" with the scenario that led to O'Neil's examination of those shells; and they argued that the jury should accept Dr. Jordan's opinion about whether the assailant could see Matthew. These were essentially attacks on the credibility of the witnesses who testified at trial, not arguments that a reasonable alternative hypothesis to Ludwig's guilt might be drawn from the evidence. Credibility of the witnesses and the weight to be given to their testimony are within the exclusive province of the jury. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984).
On appeal counsel argue two hypotheses: (1) "Nothing in the state's case negates the very real hypothesis that whoever pulled the trigger on that 12-gauge shotgun specifically intended to kill Joseph and Matthew Trojacek"; and (2) "Nothing in the state's case negates the very real hypothesis that the child was behind his father and could not be seen by the assailant." Each of these assertions is directed towards an alternative hypothesis about the intent of the assailant; neither asserts that evidence in the record raises a reasonable alternative hypothesis about the identity of the assailant as someone other than Ludwig. In addition, these assertions depend on a determination about the credibility to be assigned to the various witnesses—an evaluation we do not undertake. See Moreno, 755 S.W.2d at 867.
Viewing all of the evidence in the light most favorable to the prosecution and applying the Gunter analysis, we find no reasonable alternative hypothesis. See Gunter, 858 S.W.2d at 439. The evidence about the assailant's lack of intent conflicts with the inculpatory inferences drawn from the State's circumstantial evidence. See id. Because it conflicts, it could not form the basis of a reasonable alternative hypothesis. See id. Thus, we must hold that the evidence is sufficient for a rational trier of fact to find the essential elements of the offense of capital murder beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Turner, 805 S.W.2d at 427. We overrule point six.
LESSER-INCLUDED OFFENSE OF MURDER
The court instructed the jury only on the offense of capital murder. Point three asserts that the court erred in failing to include a lesser-included charge on murder.
An offense is a lesser-included offense of an offense charged in an indictment (the "greater offense") if: (1) it is established by proof of the same or less than all facts required to establish the greater offense, (2) it differs from the greater offense only in the respect that proof of a less serious injury or risk of injury is sufficient to establish it, (3) it differs from the greater offense only in the respect that proof of a less culpable mental state is sufficient to establish it, or (4) it consists of an attempt to commit the greater offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). A defendant charged with an offense that has lesser-included offenses may be found not guilty of the offense charged in the indictment but guilty of any lesser-included offense. Id. art. 37.08 (Vernon 1981). In determining whether a jury must be instructed concerning a lesser-included offense, a two-step analysis must be applied. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. at 672. Second, there must be some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is only guilty of the lesser offense. Id. (clarifying the test of Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (on rehearing)). If a defendant presents evidence that he committed no offense, the second prong is not met. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).
At the time of this offense, the relevant part of the Penal Code that defined capital murder stated:
§ 19.03. Capital Murder
(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
. . .
(6) the person murders more than one person:
(A) during the same criminal transaction; or
(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct.
(b) An offense under this section is a capital felony.
Tex. Penal Code Ann. § 19.03(a), (b) (Vernon 1989). "Murder," the term used in section 19.03(a)(6), is defined in section 19.02, which provides:
§ 19.02. Murder
(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Id. § 19.02 (Vernon 1989).
The application paragraph of the charge required the jury to find that:
RONALD DAVID LUDWIG did then and there intentionally or knowingly cause the death of an individual, MATTHEW DAVID TROJACEK, by shooting him with a firearm, to-wit: a shotgun; and that the defendant, RONALD DAVID LUDWIG, did then and there intentionally or knowingly cause the death of an individual, JOSEPH DAVID TROJACEK, by shooting him with a firearm, to-wit: a shotgun.
Ludwig's rationale is that, because the State was required by the charge to prove that he "intentionally" murdered more than one person during the same criminal transaction and because there is evidence that the assailant was not aware of Matthew's presence when he fired the shotgun, the evidence raises the lesser-included offense of murder. Essentially, he says that murder as defined by section 19.02(a)(2) is not available to the State as the second murder described in section 19.03 because the indictment specifically stated that he "intentionally" murdered both Joe and Matthew.
Ludwig points to the testimony of Dr. Jordan, who based his testimony on the photographs and measurements taken at the Trojacek residence, the offense reports, the autopsy reports, and other facts and testified that he "did not think" that the assailant saw Matthew. Dr. Jordan believed that the physical evidence showed that the first shot was aimed at Joe but hit Matthew and struck Joe only in the thigh. He said he thought that the second shot hit the then moving father. He testified:
[T]he child's height is such that if he were sitting or getting up at the time the shot was fired, the angle of sight from the door he wouldn't have spotted him, he was only three feet eight inches tall.
Ludwig's pro-se brief also points out that Ronnie Harris, an Ellis County Deputy Sheriff, testified that it was "possible" that the assailant did not see the child.
The State—pointing out that Dr. Jordan said his opinion was a "possibility," was a "guess as good as anyone else['s]," was "an educated guess," and was a "theory"—argues that Ludwig "failed to raise any evidence that the murder of Matthew Trojacek was of the type defined under Section 19.02(a)(2) as opposed to 19.02(a)(1)." Additionally, the State points out that section 6.04(b)(2) of the Penal Code would "make the murder of Matthew Trojacek intentional under section 19.02(a)(1)." See id. §§ 6.04(b)(2), 19.02(a)(1). In support of its position, the State cites Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1987) (on rehearing), and Thompson v. State, 691 S.W.2d 627 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865, 106 S. Ct. 184, 88 L. Ed. 2d 153 (1985). In Aguirre, the person whom the defendant intended to kill was not killed; rather, the defendant "fired through the door [intending] to kill his former wife and that felonious intent transferred over to the killing of the child." Aguirre, 732 S.W.2d at 326. In Thompson, the appellant asserted that the "State bears a greater burden in proving the culpable mental state of `intent' in a capital case since `the language of V.T.C.A., Penal Code Sec. 19.03(a)(2) requires an intentional killing over and above the intentional killing set out in the (non-capital) murder statute.'" Thompson, 691 S.W.2d at 630. The Court held that the standard for reviewing the sufficiency of the evidence of an intentional killing is the same for both murder and capital murder and that the state was entitled to the presumption that arose from the use of a deadly weapon. Id. We see no reason to apply a different rule here.
The State further argues that a charge on the lesser-included offense was not required because section 6.04(b) of the Penal Code makes Ludwig responsible for capital murder even if he only intended to kill Joe. Section 6.04(b) provides:
A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured, harmed, or otherwise affected.
Tex. Penal Code Ann. § 6.04(b)(2) (Vernon 1974). In Lewis v. State, however, the Court of Criminal Appeals stated "[w]e need not decide . . . whether § 6.04(b)(1) applies to prosecutions for Capital Murder as the jury in this cause was not authorized to convict appellant under it," recognizing that a jury is not authorized to impose criminal responsibility for the unintended consequences of intentional, felonious conduct when that theory is not submitted to the jury in the application paragraph of the charge. Lewis v. State, 815 S.W.2d 560, 562 (Tex. Crim. App. 1991), cert. denied, ——— U.S. ———, 112 S.CT 1296, 117 L. Ed. 2d 519 (1992). Thus, we reject the State's contention.
Ludwig notes that the indictment and application paragraph of the charge required specific intent to kill Matthew. He then cites Kinnamon v. State, 791 S.W.2d 84 (Tex. Crim. App. 1990), in support of the statement, "Such intent or knowledge must be specific and must be directed toward the named conduct, i.e., the death of Matthew Trojacek." Kinnamon is distinguishable on two bases: first, the charge was brought under a different section of the capital murder statute than is involved here, and second, the jury instructions are different. There, the jury was instructed:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
Id. at 87 (emphasis added). Kinnamon requested a definition, which the court refused to give, that read:
A person acts intentionally or with intent with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to cause the result.
Id. The Court of Criminal Appeals said, "[I]n the context of this case, we hold that the disputed `engaged in conduct' language which the trial court refused to exclude from the definitional portion of the jury charge was irrelevant with respect to the defendant's culpable mental state." Id. at 89. Here, the court did not use the "engage in conduct" language disputed in Kinnamon; this charge read, "A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result." Thus, Kinnamon is not applicable.
Other cases that Ludwig relies on were decided prior to the decision in Rousseau, 855 S.W.2d at 672-73. In Rousseau, the Court of Criminal Appeals modified the test that it had previously applied by adding the phrase "that would permit a jury rationally to find" to the second prong. Id. at 773.
The Court of Criminal Appeals has held that even a defendant's testimony that he had no intent to kill, standing alone, will not necessarily require a charge on the lesser-included offense of aggravated assault. Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986). This is because a statement made by a defendant "cannot be plucked out of the record and examined in a vacuum." Id. (reviewing court must examine all of the evidence and determine in the context of the facts if the lesser-included offense was raised). Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993), reaffirmed this proposition. Thus, we consider Dr. Jordan's testimony in the context of all of the evidence and not in a vacuum. Although the evidence presented through Dr. Jordan was directed towards showing that the assailant did not see Matthew, and thus did not intend to kill him, the overall thrust of Ludwig's position at trial was that the evidence did not sufficiently link him to the shooting to justify a finding that he was the assailant. Given that Ludwig primarily defended the charge on the basis that he was not guilty at all and not on the basis that he did not intend to kill Matthew, a rational jury would first decide from the circumstantial evidence whether Ludwig was the assailant. The jury obviously decided that issue against him. Then, being confronted with evidence of (a) two shots being fired ten seconds apart, (b) O'Neil's opinion that Joe was killed by the first shot and Matthew by the second, (c) no evidence of an outcry by Joe or response to Kitty's screams "for Joe to answer [her]," (d) the history of Ludwig's attitude towards his in-laws, (e) the threat that he made specifically against Matthew, (f) Jordan's and Harris' opinion that it was only "possible" that the assailant did not see Matthew, and (g) the other facts and circumstances of this offense, no rational jury—having found that Ludwig was the assailant—would believe that he did not intend to kill Matthew also. We find that the second prong of the Rousseau test was not met. See id. Thus, we hold that Ludwig was not entitled to a charge on the lesser-included offense of murder.
Finally, even if a lesser-included charge were required, we would find that the failure to give such a charge did not actually harm Ludwig. See Ross v. State, 861 S.W.2d 870, 877 (Tex. Crim. App. 1993) (on rehearing) (applying Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (on rehearing), to a failure to give requested lesser-included offense charge). When reviewing allegations of charge error, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, No. 235-93, slip op. at 6 (Tex. Crim. App. Jan. 26, 1994); Almanza, 686 S.W.2d at 171. The burden lies with the defendant to persuade the reviewing court that he suffered some actual harm as a result of the charging error. Abdnor, slip op. at 7.
As we have stated, Ludwig did not defend the charge on the basis that he did not intend to kill Matthew. Thus, even after being instructed on a lesser-included charge of murder, the jury would still initially inquiry whether it could find from the circumstantial evidence that Ludwig was the assailant. Having made that determination, it would logically find at a minimum that he had the intent to murder Joe and was guilty of murdering Matthew because he committed a felony (murder of Joe) and in furtherance of that murder committed an act clearly dangerous to human life (firing a shotgun into a residence) that caused the death of an individual (Matthew). See Tex. Penal Code Ann. § 19.02(a)(3). Having convicted Ludwig of the murder of two in-laws, one a five-year-old child, we believe that any rational jury would have assessed life in prison. Thus, we cannot say that the failure to include a charge on the lesser-included offense of murder actually harmed him. See Almanza, 686 S.W.2d at 171. Point three is overruled.
THE "SHOTGUN HICKEY"
Point four asserts that the court should not have admitted evidence of the "shotgun hickey" on Ludwig's shoulder because the evidence was obtained as a result of an illegal arrest. Although a warrant for Ludwig's arrest was issued in Ennis on the same day, none had been issued by 1:00 p.m. on June 15, 1990, when he was arrested by Texas Rangers in Houston. During the "booking-in" process at the Ellis County jail, officers noticed the "shotgun hickey" and photographed it. Ludwig filed a motion to suppress the evidence; the court denied the motion.
In a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). He may choose to believe any or all of the witnesses' testimony. Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990). The findings of the trial court should not be disturbed absent an abuse of discretion. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991); Meek, 790 S.W.2d at 620. If the findings are supported by the record, the only question on appeal is whether the court improperly applied the law to the facts. Romero, 800 S.W.2d at 543.
Ludwig attacks the validity of the warrant, asserting that the underlying affidavit was deficient. The State's position is that the arrest was valid in the absence of a warrant because it was permitted under article 14.04 of the Code of Criminal Procedure. We agree that this arrest must be tested by the rules governing warrantless arrests.
A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the exceptions specified in articles 14.01-14.04 of the Code. Lunde v. State, 736 S.W.2d 665, 666 (Tex. Crim. App. 1987); Tex. Code Crim. Proc. Ann. arts. 14.01-14.04 (Vernon 1977 & Supp. 1994). Article 14.04 provides:
Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.
Tex. Code Crim. Proc. Ann. art. 14.04. Thus, under article 14.04, there are four basic requirements that must be met to effect a valid warrantless arrest:
(1) the person who gives the information to the peace officer must be credible;
(2) the offense must be a felony;
(3) the offender must be about to escape; and
(4) there must be no time to procure a warrant.
Id.; Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990).
A review of the record reveals that Ronnie Harris, a Deputy of the Ellis County Sheriff's Department, contacted the Rangers and requested that Ludwig be arrested. Harris testified that, at the time he made the request, he was preparing affidavits for a warrant of arrest because he had information that:
1. the victims had been killed by a blast from a 12-gauge shotgun fired through the door of their home;
2. Ludwig had been engaged in a "long-term acrimonious dispute" with members of the Trojacek family;
3. Ludwig had threatened to kill Joe using the same means as used in the offense;
4. Ludwig had threatened to kill Matthew;
5. Ludwig knew how to evade the security system at the Trojacek residence;
6. a dark pickup truck had been seen in the vicinity of the crime scene; and
7. Ludwig had purchased a dark pickup truck within the past week.
Harris testified:
Q. At the time you were preparing these affidavits, did you know where this defendant was?
A. No, I didn't.
Q. Were various law enforcement agencies trying to find out where he was?
A. Yes, sir.
Q. And before the affidavits and arrest warrants were finished, did you receive information that they had found him?
A. Yes, we did.
. . .
Q. At the time you began these affidavits, though, you didn't know where he was?
A. (Witness indicating in the negative.)
THE COURT: We need a verbal response for the record.
THE WITNESS: No, sir.
Q. (By [the prosecutor]) But you had reason to believe that Ronald David Ludwig had, in fact, committed a felony; is that correct?
A. That's correct.
Q. And he wasn't at any of his -- any of the addresses or any known locations during the time y'all had looked for him?
A. No, sir.
Q. As far as you were concerned, he was either in the process of attempting an escape or had escaped detection?
A. At the time we started these affidavits, yes, sir.
The State says that, because Ellis County authorities did not know Ludwig's whereabouts and were unable to locate him at any of his known addresses or locations, they were justified in believing that he was attempting to escape or had escaped.
When they arrested Ludwig in Houston, the Rangers were in possession of information received by radio and telephone that Ludwig was from Houston and might be located there. They also had received information that he was "going to Galveston." The offense was a felony; viewing the totality of the circumstances, the evidence adduced at the suppression hearing supports the conclusions that Harris, the requesting officer, had gathered information from credible persons that he transmited to the Rangers, that both he and the Rangers believed that Ludwig might escape, and that there was no time to procure a warrant. See Crane, 786 S.W.2d at 346; Tex. Code Crim. Proc. Ann. art. 14.04. Thus, we find that the court did not abuse its discretion in denying the motion to suppress the testimony and photograph about the "shotgun hickey." We overrule point four.
HEARSAY OBJECTION
Point five complains that the court admitted testimony from an officer about his brother's estimate of the mileage reflected on the odometer of Ludwig's truck. The State's position at trial was that Ludwig's new pickup's odometer would reflect one trip from Houston to Ennis and return. Ranger Captain Prince testified over Ludwig's objection that, when asked about the mileage on the truck, Olin Ludwig said that it was somewhere in the vicinity of a thousand miles. The State concedes that the statement was hearsay but suggests that, prior to Prince's testimony, Ludwig had elicited the same information during cross-examination of Ranger Medierra, by asking:
Q. So at 4:20 Ron Ludwig's brother calls you at the Houston office and tells your office and your investigators that he would take the truck, correct?
A. That's what I was told. I didn't talk to him.
Q. And he tells you that he checked the odometer and it had over a thousand miles on it?
A. I think that's what he told Captain Prince.
As a general rule, any error in admitting evidence is cured when the same evidence is admitted through another source. Hudson v. State, 675 S.W.2d 507 (Tex. Crim. App. 1984). Even if it were error to admit this hearsay testimony through Captain Prince, the error cannot be said to have contributed to Ludwig's conviction or punishment. See Tex. R. App. P. 81(b)(2). Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991). We overrule point five.
LUDWIG'S PRO-SE POINTS
As noted above Ludwig's pro-se brief, considered here in the interest of justice, adopts points one, two, three, four, and six of his counsels' brief. Three of his additional points will be discussed briefly here and the final point, ineffective assistance of counsel, as the concluding point of this opinion.
evidence not admitted
Ludwig asserts in point seven that the court erred in failing to admit into evidence a letter written by Theresa. He has, however, failed to preserve this point for our review in that our examination of the record reveals no such letter that was offered into evidence or that the court ruled inadmissible. See Tex. R. App. P. 52(a). We have reviewed Theresa's testimony carefully and find no reference to a letter that was marked or identified by her as an exhibit. Nothing has been preserved for appellate review. See id. We overrule point seven.
challenges to veniremen for cause
Ludwig's eighth point is that the court erred in failing to sustain his challenges of "many veniremen" for cause. The voir dire examination of the individual members of the jury panel occupies more than 2,300 pages of the statement of facts. Ludwig does not identify which jurors were challenged for cause nor direct our attention to questions and answers that demonstrate any basis for a challenge of any member of the jury panel for cause. See Tex. R. App. P. 74(d). In fact, the transcript affirmatively shows that the jurors selected, Paul, Hancock, Montgomery, Morgan, Watts, Maxwell, Plemons, Williams, Jock, Nichols, Milton, and Waller, were not challenged for cause or peremptorily by either party. Point eight is overruled.
jury shuffle
Point nine contends that the court denied a timely demand to shuffle the jury panel. Ludwig was charged with a capital offense and a special venire was assembled. Prior to the beginning of the individual questioning, the court granted the State's request that the panel be shuffled. Ludwig objected to the shuffle. His counsel stated: "[W]e just want to put on the record the reason we believe that they're asking for a shuffle is that in the first three rows, there's approximately 14 black people . . . and that could only be the logical explanation in asking for a shuffle since they don't know anybody's background other than their home, their age, where they come from in [Navarro] county, and their race." After the jurors were reseated, Ludwig requested another shuffle. The court denied his motion.
Article 35.11 applies to capital murder cases. Chappell v. State, 850 S.W.2d 508, 509 n.4 (Tex. Crim. App. 1993) (citing Hall v. State, 661 S.W.2d 113, 115 (Tex. Crim. App. 1983)). Article 35.11 mandates that a defendant has an absolute right to a shuffle of the jury panel; it does not, however, mandate that he be allowed to reshuffle the panel after the state has caused the panel to be shuffled, absent some misconduct in the state's shuffle. Jones v. State, 833 S.W.2d 146, 147-49 (Tex. Crim. App. 1992). Here, there is no showing that the shuffle done at the request of the State was anything other than proper. See id. We overrule point nine.
ineffective assistance of counsel
Finally, Ludwig's pro-se brief asserts in point ten that he was denied the effective assistance of counsel. He states, in support of his contentions, that his attorneys failed to seek out witnesses suggested by him; failed to "object to Joseph Trojacek's nonverbal conduct in response to a tape recorded message," which was hearsay; failed to provide an adequate appeal brief; failed to have him examined by a physician on the morning after his arrest, a procedure that would have yielded evidence contradicting the "shotgun hickey"; failed to investigate a report of a truck with "Hemphill" on it; failed to have the shotgun shells tested by an independent expert; failed to have a palm print analyzed; asked a question of an expert that inferred his guilt; failed to object to other hearsay; failed to inform him of a plea bargain; and failed to object to certain statements that the prosecutor made. Additionally, he says that the attorneys had a conflict of interest because they were "coerced by [Theresa's divorce attorney] into being completely prejudiced" against him. Because these allegations were not presented in a motion for new trial and no evidentiary hearing has been held on them, there is no basis in the record on which to analyze many of them.
To prevail on this point, Ludwig must meet the two-pronged test used to analyze claims of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 505-06 (Tex. Crim. App. 1991); see also Hernandez v. State, 726 S.W.2d 53, 54-56 (Tex. Crim. App. 1986) (adopting the Strickland standard). First, he must show that his trial counsel's performance was so deficient, because he made errors of such a serious nature, that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. Second, he must demonstrate that the deficient performance so prejudiced his defense that he was deprived of a fair trial, i.e., that there is a reasonable probability that, but for his counsels' unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App.—San Antonio 1991, pet. ref'd).
A claim of ineffective assistance of counsel must be determined upon the particular facts and circumstances of each individual case. Id. A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Stafford, 813 S.W.2d at 506. Stated another way: Counsel's competence is presumed, and the party asserting ineffective assistance must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. See id. Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. Jimenez, 804 S.W.2d at 338. The fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel. Id.
For a determination of the totality of the circumstances, we will review counsels' performance as demonstrated by the record. The record shows that Ludwig's attorneys filed motions:
• to disqualify the trial judge,
• to declare the statutory oath for jurors in a capital case unconstitutional and asking the court not to require that oath,
• to set aside the indictment because the capital murder statute is unconstitutional and because of systematic exclusion "of Grand Jurors on the basis of race and age,"
• to prohibit the mention of extraneous offenses,
• to suppress evidence taken as a result of his arrest and as a result of a search of premises in Katy,
• to discover the criminal record of the State's witnesses,
• to discover and inspect evidence in the possession of the State,
• for change of venue,
• for an in-camera inspection of the State's entire file,
• to take depositions,
• for dismissal of the capital murder charge based on selective prosecution and exclusion of a fair cross-section of the population as jurors,
• to enforce the court's order that the State elect which charge it would prosecute,
• to alternate the parties' right to question prospective jurors first,
• in limine,
• to videotape the jury selection process,
• for proposed instructions in the court's charge,
• for disclosure of hypothetical questions about future dangerousness,
• to preclude displays of emotion by the victims' family in the courtroom,
• to prohibit jury dispersal and exposure of the jury to the victims' family or friends, and
• to exclude evidence of unadjudicated extraneous offenses during the punishment phase.
Hearings were held on various pretrial motions, including the motions in limine, the motion to suppress the evidence obtained as a result of the arrest and the searches of the residence and clinic, a motion to recuse the trial judge that was denied, and a motion to change venue that was granted. At each, Ludwig's attorneys participated fully, objecting to testimony and exhibits and examining and cross-examining witnesses.
During the individual voir dire examinations of the prospective jurors, counsel asked appropriate questions, sought and obtained rulings that panel members be excused for cause, excused other members by agreement, exercised all of the peremptory challenges allowed, and requested additional strikes.
An opening statement (1) painted a picture of Ludwig as "a 22-year old man when he graduated from vet school, a promising career, a man who married, divorced, remarried, who is in love with his wife, Theresa Trojacek, who adored his son, and his nephews"; (2) called the jury's attention to the State's burden of proof; (3) suggested that "our Constitution doesn't allow hearsay and innuendo and skepticism to come into play when you have to decide this case"; (4) criticized the investigation, saying that the officers "failed horribly, negligently"; (5) reminded the jury that he would "scrutinize, I'll cross-examine, I'll rationalize with witnesses. I'll comb every word they say . . . ."; and (6) suggested that the State's evidence would be "inconclusive, unacceptable, maybe's, could be's, should be's, looks that way, could be that way, might be that way, is inconclusive . . . to allow you to convict . . . ." Immediately prior to the beginning of testimony, the attorneys asserted a motion in limine, the majority of which was granted, and assured that all pretrial rulings and rulings from a prior trial were on the record.
During Theresa's testimony, the attorneys objected to answers they deemed to be privileged, irrelevant matters, hearsay, repetitious and leading questions, and testimony relating to items found in the searches of the clinic. They cross-examined her extensively about how she and Ludwig met, their early relationship, their business relationship, her feelings about Ludwig's prior marriage, their plans, their engagement and marriage, how they handled their money and property, and their relationship with their son. They also questioned her about Ludwig's nature, his character, and their "blow-ups," about the sale of the veterinary clinic in League City, their "time off," and the construction of the new clinic in Katy, about their visits to Ennis and the family relationship prior to her father's death, about Ludwig's expectations of her both in their business and in her dealings with her family, and about their different approaches to accomplishing the same results. They questioned her about the divorce and their attempt at reconciliation, about how she had benefitted financially since Ludwig's arrest, about her operation of the clinic and handling of the property and money, about her giving permission to search the clinic after Ludwig was arrested, and about whether she was being vindictive and "trying to get revenge."
They cross-examined John Compton about Ludwig as an employer and the way he treated clients—obtaining favorable testimony. Compton said that he saw no difference in Ludwig when the divorce proceeding started. He also said that when they took the trip to Ennis they never got out of the truck.
During cross-examination, Willie Morillione stated that Ludwig had good manners, was very interested in the construction of the clinic, and appeared to be a good father.
Counsel cross-examined Kyle Tomme about his relationship with Ludwig and Theresa and elicited testimony that Ludwig was "surprised" and "hurt" when she left. He said that Ludwig was a good father and that he had never seen a shotgun, rifles, ammunition, or shells in the clinic. He said that nothing in their relationship would make him believe that Ludwig was a violent person.
Cross-examination of Officer Watson centered on the amount of light that he could see in the den when he went to the back of the Trojacek residence and whether he had ever given a statement about what he saw. Cross-examination of the paramedic was limited to establishing his lack of observation of lighting and of the presence of glass in the den because those items were not his responsibility.
Questioning of Ranger Medierra revealed that Ludwig did not try to run or hide when the Rangers confronted him and that all of the information that he had about the case came from Ranger Turner, raised questions about Ludwig's giving them permission to search the vehicle, and inquired about why they had no search warrant for the vehicle when they arrested Ludwig. Ranger Oldham was questioned about the nature of the search of the clinic and his failure to find any weapons and about the search of the residence and of Ludwig's land. Counsel also inquired whether the Rangers had told Olin Ludwig that they wanted to search the truck. They also made a bill of exception of testimony by Oldham.
Deputy Whitely was asked about his qualifications and experience as an investigator, the method used to gather evidence at the crime scene, and—through extensive questions designed to show that Whitely did not follow procedures recommended by the Federal Bureau of Investigation's Handbook of Forensic Science—the types of evidence that Whitley did not gather at the scene, from Ludwig, or from his vehicle. Whitley testified that he did not establish where Joe or Matthew were at the time they were shot.
Cross-examination of Ronnie Harris began with his admitting that the case was built on circumstantial evidence and continued with questions about why the earlier search of the clinic had revealed nothing and why Theresa had waited from five to seven days to report the items found there to law enforcement authorities. Harris was further questioned about his experience and training and what he did and did not do in connection with the investigation. He was also questioned about the factual basis for the affidavit on which the arrest warrant was issued and the findings of the Department of Public Safety lab. As noted above, Harris said that it was "possible" that the assailant did not see Matthew.
Cross-examination of James Perry suggested that the items were moved to Ludwig's attorney's office to comply with orders in the divorce case and revealed that Perry had no idea about the reasons that Ludwig may have moved them. Counsel established through Wenck that Ludwig's purchase of the shotgun was legal.
Captain Prince said on cross-examination that he had no problems in arresting Ludwig, who followed his instructions.
Monte Marshall said that there was nothing unusual about the sale of a pickup to Ludwig and that his company sells 150 extended-cab pickups a month. Marshall stated that "this type of truck is just everywhere," and "A new vehicle is just kind of like a toy, you want to use it." He also said that most of the pickups that they sold had tinted glass and that window glass looks dark at night whether tinted or not. During the cross-examination of Marshall, the defense introduced affidavits showing (1) that 82,863 1990-model Chevrolet extended-cab pickups were made from the beginning of production through May 19 and (2) the number of pickups that were registered in Texas from October 1989 through May 1990, ranging from a low of 1,108 in October to a high of 1,924 in May.
Dr. Barnard said on cross-examination that he had taken blood from Matthew and submitted it to the criminal investigation laboratory in Dallas and that he had seen no information about where Joe and Matthew were before the shots were fired. The limited cross-examination of Dr. Ward was confined to her opinion that Joe was "seated on the floor" when shot.
Ranger Turner was cross-examined about having only a circumstantial-evidence case, not finding any evidence during his searches of the clinic, finding only carefully-laid-out firearms brochures on his search of the residence, why additional physical evidence had not been gathered at the Trojacek residence, a statement that Theresa had given "[reviewing] her entire life with Ronald Ludwig and the events coming up to June 14th," the information that he received from her divorce attorney, their failure to ever examine Ludwig's pickup, and whether he had "determined that [Ludwig] was the murderer, and now you had to get evidence to prove it."
The defense cross-examined Spaniel about Ludwig's relationship with Matthew and his own son and his taking them fishing, Ludwig's working to clean up a flood at the Trojacek residence, and about his lack of knowledge of the reason Ludwig purchased gloves.
Cross-examination of Hamilton centered on his friendship with the Trojacek family and the large number of pickups that he saw on a regular basis in Ellis County. On cross-examination, Joe Crase admitted that he had not seen an extended cab truck on Farm Road 660 that night. Mrs. Crase and Skrivanek both said that they did not see a window-sticker or paper tag on the truck.
The attorneys cross-examined Dr. Guez about her credentials, the inexactness of her profession, her conversations with Ludwig, his attendance at her sessions, his "distorted thinking," and his feelings towards Theresa. Specifically, she was asked about an earlier conversation that they had with her and whether she at that time opined that Ludwig did not have the ability to intend to kill Matthew. She agreed that she told the attorney that Ludwig would not intentionally take Matthew's life. She said that Ludwig referred to two instances in Ennis involving his son—one where his grandmother hit him with a fly swatter and one where Joe hit him in the face. She admitted that, if a child is harmed, a parent's outrage would be "a typical response." She said her report to the appointing court did not mention that Ludwig had a propensity for violence, that he had threatened anyone, or that he needed hospitalization or care, while recommending that he have visitation and possession of the child. She said that he had never, in her presence, exhibited violent behavior, raised his voice, been disrespectful, or been rude. She observed Ludwig to be "very loving" with his son.
Cross-examination of Kitty was about Joe's relationship with Ludwig and the family's relationships in general.
Betty Jo Page was cross-examined about the number of times she talked to Ludwig on the phone. She said that he "seemed like a very sweet and kindhearted person." She had been to the residence in Katy, and they had talked "very briefly" about his divorce. She said that he "loved his son very much" and he "just felt hurt."
Harlan Lane said on cross-examination that his purchase of the pickup was open and honest. He said that the truck had a Lawrence Marshall red paper license plate when he got it. When the court took judicial notice of Gursin's status as an attorney for Ludwig, counsel sought and received an instruction that the jury was "not to infer anything one way or the other" about his absence from the trial.
During John O'Neil's testimony, counsel renewed an earlier objection, which the court overruled, to the introduction of the videotape. They further objected to O'Neil's narration of the videotape, to the introduction of the photographs of his comparisons, and to portions of his testimony on "terminal ballistics." They cross-examined O'Neil about his experience as an investigator and the type of information that an investigator considers important. They also questioned him from the photographs of the scene and about the positions of the victims before they were shot, the accuracy of his estimate of the distance the shotgun was from the child when fired, his opinions that the assailant must have seen the child and had to have changed positions between shots, his examination of the shells, and whether shooting a shotgun bruises everyone.
The defense team objected at appropriate times to evidence being offered by witnesses for the State. During a break after Montgomery's testimony, they objected to autopsy photographs that the State proposed to introduce through testimony of the medical examiners on the basis that the unfair prejudice that they created would substantially outweigh their probative value. The court overruled the objection, but gave a running objection to each photograph.
Before the State was allowed to call Dr. Guez, the attorneys made a lengthy objection out of the presence of the jury on the grounds that Ludwig's conversations with her were privileged and confidential and, even if admissible on other grounds, should be excluded under Rule 403 because her statements would be more prejudicial than probative. The court granted a running objection to her testimony.
During Dr. Guez's testimony, several objections were made to the court's refusal to allow an exhibit and questions about it—an exhibit that the court allowed for purposes of a bill of exception.
At the conclusion of the State's case in chief, counsel made a motion for a directed verdict, pointing out that the only evidence that linked Ludwig to the crime was O'Neil's testimony that shells found at the scene were fired in the same shotgun as those found in the clinic in Katy and that it "is ludicrous to state that Mr. Ludwig had possession of those shells." They also asserted in the motion that the State had failed to prove that Ludwig had "intentionally and knowingly murdered more than one person during the same criminal transaction" and that the only evidence of intent to kill Matthew was O'Neil's opinion, which was based only on talks with the medical examiner.
Prior to beginning their rebuttal, counsel objected to the State's request that O'Neil be "exempt from the rule" and permitted to return to the courtroom to hear the defense's expert testimony.
During rebuttal, counsel initially offered and the court admitted an affidavit from the Weather Research Center of Houston showing that, at Ennis Texas, on June 14, 1990, the "moon rose at 0028 CDT and set 1201 CDT" and the "winds were southeasterly 5 to 10 mph with partly cloudy skies at 6 pm with clouds increasing through the night to overcast by 6 am on the 15th June." They also offered a portion of Ludwig's high-school yearbook, which the court admitted, to show "that he was involved in his high school."
They presented a single witness, Dr. Robert Jordan, whose testimony has been described earlier in this opinion. At the conclusion of all of the evidence, they renewed the motion for an instructed verdict. As noted above, counsel objected to the charge on the basis that it did not include the lesser-included offenses of murder and voluntary manslaughter.
During final argument, counsel suggested that the entire case was based on conjecture and suspicion. He suggested that Theresa lied when she "could not even give [Ludwig] the credit that he deserves" and that she "did it for vengeance" and because she wanted to gain an advantage in the divorce case. He also suggested that Dr. Guez lied and called her "a quack." He attributed the State's entire case to a statement by Theresa's divorce attorney, who "told them that this man had an acrimonious relationship, divorce dispute with his wife." He questioned the effectiveness of the investigating officers and their failure to gather certain items of evidence that he suggested would be helpful to the jury. He acknowledged that the shotgun shells were "the link up to the case. That's the one bit of hard evidence to prove that Ronald Ludwig shot Matthew and Joe Trojacek. The shells. But they're covering it up because something is wrong. Something is missing or not telling the true story." Counsel argued that the jury should accept Dr. Jordan's version of events and his opinion that the mark on Ludwig was not a "shotgun hickey," questioning the qualifications of the law enforcement officers to make that determination. He asked the jury not to judge the case on suspicion, but "with cold hard facts."
As we have stated, many of the instances of conduct that Ludwig alleges as demonstrating that his counsel were ineffective cannot be determined from this record. We find no evidence relating to his allegations that his attorneys failed to seek out witnesses, failed to have him examined by a doctor after his arrest, failed to investigate a report of another pickup in the vicinity of the Trojacek residence, failed to have the shotgun shells tested by an independent expert, failed to have a palm print analyzed, and failed to inform him about a plea bargain. Without evidence in the record, Ludwig cannot sustain his burden of showing ineffective assistance; thus, arguments on those assertions will not be considered. See McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992).
Ludwig also asserts that counsel "asked a question of an expert that inferred his guilt" and failed to object to Joe's "non-verbal conduct" as hearsay, to other hearsay, and to certain statements that the prosecutor made. His right to effective counsel is not the right to error-free counsel. See Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Isolated failures to object to improper evidence do not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
Recognizing the strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, we cannot say that Ludwig's complaints about his counsel are firmly founded. See Stafford, 813 S.W.2d at 506; Jimenez, 804 S.W.2d at 338. Based on a review of the entire record, we find that Ludwig has not demonstrated that his trial counsel were ineffective. See Archie v. State, 615 S.W.2d 762, 765 (Tex. Crim. App. [Panel Op.] 1981); Jimenez, 804 S.W.2d at 338. In making this assessment, we consider the totality of the representation, rather than isolated acts or omissions of trial counsel, and apply the test as of the time of the trial, not through hindsight. See Jimenez, 804 S.W.2d at 338.
Having had the benefit of his attorneys' brief and heard their arguments on appeal, we reject his claim that counsel filed an inadequate brief. In fact, he adopted five of their six points of error, making only additional comments about the facts presented under those points. We overrule point ten.
AFFIRMANCE
Having overruled all of the points of error, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed February 16, 1994
Publish in part (see page 10)