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Opinion filed April 24, 2008
In The
Eleventh Court of Appeals
____________
No. 11-07-00041-CR
__________
MICHELLE CHRISTINE THOMAS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 15960B
M E M O R A N D U M O P I N I O N
Michelle Christine Thomas was indicted for murdering Ricky Lynn Burleson. The jury found Thomas guilty and assessed her punishment at thirty-seven years confinement. We affirm.
I. Background Facts
Thomas shared a complicated relationship with Chris Harper. They had a daughter together, used drugs together, and previously were engaged to be married B even though at the time she was married to someone else. On May 27, 2005, they celebrated their daughter=s birthday and that night went to dinner. During dinner, Thomas told Harper that Burleson had a tape of her committing an assault and that he was using the tape to threaten her. After dinner, they went to her home and discovered that Burleson had broken in and was still inside. Thomas called the police. They responded, told Burleson to leave, and put him on a trespass notice.
Thomas and Harper spent the night together. The next morning they got into a fight, and Harper left. Late that night, Thomas called Harper. She was upset. She said that she had gotten herself into a problem and needed help. Harper went to her house and noticed a van parked beside it. He entered through a side door into a bedroom. When he stepped inside, he saw that Burleson was lying face down on the floor in a small pool of blood, that Thomas was sitting on a bed, and that a pipe wrench was lying by the bed. They decided to take Burleson=s body to the country. Neither mentioned calling the police. Harper loaded the body into Burleson=s van. He told Thomas to clean up the blood with hydrogen peroxide and to check for blood signs with a black light. They took Burleson=s body to a rural area and hid it. On the way back to town, Thomas offered to dispose of the van, and they left it near her house.
After Burleson=s death, Thomas engaged in a number of apparently fraudulent transactions using his bank account. She made four deposits into Burleson=s checking account in June. Each time, she received cash back as part of the transaction. When bank tellers asked about Burleson, she told them that he was ill. On June 18, she took a $4,500 check to the bank. She attempted to deposit $900 into his account and to keep $3,600 in cash. Bank officials refused to consummate the transaction and told Thomas that Burleson needed to personally come to the bank.
A week or two after Burleson=s death, Thomas told Harper that she had taken care of Burleson=s body and had burned the area. Harper was concerned because nothing had happened to Burleson=s van, so he drove to the site where they dumped Burleson=s body. The body was still there and had not been burned. He returned to town and confronted Thomas. He was angry because she had given him a very detailed story about how she and a friend had dismembered and disposed of the body. Thomas responded by threatening to pin the murder on him. Two or three weeks later, Harper panicked after undercover police officers started looking for him, after he was unable to locate Thomas, and after he noticed that Burleson=s van was gone. Harper took his daughter and drove to Fort Worth. His truck overheated and damaged the motor. Eventually, his mother had to come get his daughter. Harper tried to kill himself by asphyxiation using his truck exhaust but ran out of gas. He then convinced his dad to drive him back to Abilene.
When Harper returned to Abilene, he successfully contacted Thomas and learned that she had not disposed of the van. They concluded that the police had it and decided to flee. Harper=s father drove them back to his truck in Fort Worth. They stayed in Fort Worth two days before returning to Abilene and separating. Approximately one month later, Thomas called Harper. They got into a fight when he refused to pick her up. She again threatened to blame him for Burleson=s murder. Harper moved Burleson=s body that night in response to her threat. By this time, the body was decomposed, and only the skeleton remained. Harper tried to sink the remains in a lake but was unable to do so because it was too windy. He decided to hide the remains near the lake and to come back later. His mother, however, convinced him to talk to the police, and around July 27, 2005, he took them to Burleson=s remains and also showed them where Burleson=s body was originally dumped.
Thomas was already in custody on unrelated charges. Sergeant Lynn Beard contacted her, and she gave a statement on July 27. She told Sergeant Beard that Burleson came to her house to buy drugs and that, while she was getting him methamphetamine, he jumped her. During their struggle, she hit him on the head with a pipe wrench. He fell down, and she hit him again. She panicked and called Harper. He came over, and when Burleson started to wake up, Harper choked him until he passed out. They decided to take Burleson to the country. They tied him up. While they were driving, Burleson woke up. Harper choked him again until he passed out. When they got to their destination, they realized that Burleson had died.
Thomas requested a second interview on August 4. In this statement, Thomas contended that Burleson attacked her and stabbed her in the left breast with a knife. She told Sergeant Beard that Harper came in during their struggle and that he choked Burleson until he passed out. She said that she originally lied about hitting Burleson with a pipe wrench because she did not want to get Harper into trouble.
Thomas requested a third interview on August 9. During this interview, she denied hitting Burleson and claimed that Harper killed him. She said that she and Harper were trying to reconcile and that he was present when Burleson showed up to buy drugs. When she went to get some methamphetamine, Burleson attacked her and stabbed her in the breast. Harper came to her defense and choked Burleson to death. They tied up the body and dumped it in the country.
Thomas was indicted for murdering Burleson. Harper was charged with and pleaded guilty to tampering with evidence. Thomas=s indictment contained two paragraphs. The first paragraph alleged that Thomas intentionally and knowingly caused Burleson=s death by striking him with a pipe wrench or other unknown object, by choking him, and by manner and means unknown. The second paragraph alleged that Thomas committed an act clearly dangerous to human life causing Burleson=s death by striking him with a pipe wrench or other unknown object, by choking him, and by manner and means unknown. The jury found Thomas guilty of murder as alleged in the second paragraph and assessed her punishment at thirty-seven years confinement. Harper, conversely, received a five-year sentence.
II. Issues on Appeal
Thomas challenges her conviction and sentence with three issues. She contends that the trial court abused its discretion by admitting a photograph of Burleson into evidence during the punishment phase of the trial, that the evidence was factually insufficient to sustain a guilty verdict, and that the State did not properly corroborate her pretrial confession.
III. Analysis
A. Burleson=s Photo.
During the guilt/innocence phase of the trial, the State showed Roberta Burleson a photo. Roberta was Burleson=s former wife. They were married for twenty-two years and divorced because of his drug use. Roberta testified that the photo was a picture of Burleson that was taken while they were on a cruise. Roberta saw Burleson in March 2005. At that time, Burleson was Areal thin,@ had a gray complexion, and did not look healthy. He did not look the way he appeared in the cruise picture. The State did not offer the picture into evidence or make any further reference to it at that time.
During the punishment phase, the State called Burleson=s son, Nathan Burleson. Nathan testified that his father=s drug problem became bad after the divorce and that his father looked weak and malnourished. Nathan identified his father=s cruise picture. He testified that the picture was taken long ago during a happier time. The State offered the cruise picture, and Thomas objected. The trial court overruled the objection and admitted the photo. Thomas argues that the trial court abused its discretion because the photograph was irrelevant to her punishment and that it inaccurately depicted Burleson at the time of his death.
1. Standard of Review.
We review the trial court=s admission of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court does not abuse its discretion if its ruling is within the zone of reasonable disagreement. Id.
2. Is the Photograph Admissible?
A photograph is admissible if it is relevant and if it is an accurate representation of its subject as of a given time. DeLuna v. State, 711 S.W.2d 44, 46 (Tex. Crim. App. 1986). Relevant evidence is defined as Aevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex. R. Evid. 401. As a general rule, if verbal testimony regarding what is depicted on the photograph is admissible, the photograph itself is admissible. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004).
The general relevancy rule, however, is not a perfect fit when considering evidence offered during the punishment phase. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). Trial courts are authorized to admit punishment evidence about Aany matter the court deems relevant to sentencing.@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2007). Under this provision, relevant punishment evidence is that which helps the jury Atailor the sentence to the particular offense@ and Atailor the sentence to the particular defendant.@ Rogers, 991 S.W.2d at 265. Consequently, when considering the relevancy of punishment evidence, we do not ask if it makes a fact in issue more or less probable but whether it is admissible pursuant to Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2007). Najar v. State, 74 S.W.3d 82, 87 (Tex. App.CWaco 2002, no pet.).
Texas courts have held that punishment evidence can include photographs that conceptualize the defendant=s criminal conduct. In Aragon v. State, 229 S.W.3d 716 (Tex. App.CSan Antonio 2007, no pet.), the court considered the admissibility of an autopsy photograph of a four-year-old girl. The defendant had been previously convicted of manslaughter in her death, and the State was using this conviction for enhancement. The court noted that nothing was depicted in the photograph that had not been previously testified to and concluded that, although the picture may have been disturbing, it illustrated nothing more than the reality of the crime committed. Id. at 724.
This case presents a similar situation. During oral argument, the State contended that the jury was entitled to know Athat Burleson was a human being and not just some chewed-up bones.@ Because Burleson=s body was hidden and allowed to decompose, some of the trial testimony was dehumanizing. The jury heard considerable testimony that Burleson=s body had skeletonized, that his bones had been scattered by animals, that they showed signs of animal scavenging, and that when found they were treated as evidence by being boxed up and shipped off for forensic examination. Prior to seeing the cruise picture, the jury=s only visual depictions of Burleson were police and medical examiner photographs of his bones.
The jury knew that the cruise picture did not accurately portray Burleson at the time of his death. Both his ex-wife and son confirmed that Burleson=s drug use had taken a toll on his health and his appearance. However, the photograph was still relevant as punishment evidence because it reminded the jury that, despite his problems and issues, Burleson was still a human being and that Thomas had taken a life. Furthermore, because of the disclosures accompanying the photograph, its probative value was not outweighed by the danger of unfair prejudice. We overrule issue one.
B. Factual Sufficiency of the Evidence.
Thomas next argues that the evidence is factually insufficient to support the jury=s determination that she murdered Burleson.
1. Standard of Review.
To determine if the evidence is factually sufficient, we review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). Then, we determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000).
2. The Evidence.
Burleson=s remains were sent to the Tarrant County Medical Examiner=s office for evaluation. Dr. Marc Krouse performed the analysis. He found a perimortem fracture of the left zygoma. Dr. Krouse testified that this injury alone would not cause death and that it only indicated that Burleson suffered a blunt force injury to his head. He acknowledged that 95% of the people who receive a skull fracture survive but pointed out that 50% of the people who sustain fatal head injuries have no skull fracture. Dr. Krouse testified that he could not determine exactly when Burleson received the blow, except that it occurred around the time of death. He knew that it did not occur more than a week before death, but he could not distinguish between an injury occurring one day before and one occurring one day after death.
Dr. Krouse was unable to determine the cause of death. He explained how a blunt force trauma can tear the small blood vessels in the brain and cause a subdural hematoma, how the brain begins to swell, and how an individual can subsequently die of aortic shock of the head. He testified that being struck with a pipe wrench could have caused the injury he observed in Burleson and that it could have been fatal. He could not, however, determine if Burleson actually suffered a subdural hematoma because of the body=s decomposition.
The police found blood in Burleson=s van. They were unable to find any on a pipe wrench belonging to Thomas or on wood shavings taken from the floor of her house. DNA testing established that the blood found in the van was from a male. The police did not have a sample of Burleson=s DNA, so they compared the blood to his mother=s DNA. That blood could not be excluded as having come from one of her biological children.
Harper implicated Thomas. He testified that the night before the incident she was upset and complained that Burleson was threatening her with an incriminating tape. When he got to her house that night, Burleson was already dead; Thomas told him that she had gotten herself into trouble and asked for his help. A neutral review of Harper=s testimony must also consider several serious credibility concerns. Harper had an extensive criminal history, and he appeared at trial pursuant to a bench warrant from TDC. He had convictions for burglary of a motor vehicle, possession of marihuana, possession of a prohibited weapon, and possession of methamphetamine. He admitted to using methamphetamine on a regular basis. When he saw Burleson=s body at Thomas=s house, he did not check on Burleson, call the police, or request an ambulance. Instead, he helped Thomas dispose of the body and gave her instructions on cleaning up blood with hydrogen peroxide and using a black light. He helped hide Burleson=s van, fled to Fort Worth twice, and moved Burleson=s remains to a new hiding place to avoid detection. There was also evidence that Harper admitted to his mother, Corinne Harper, that he had killed Burleson. Donald Barker, a longtime friend of Corinne, testified about a conversation he had with her the summer of 2005. Barker testified that Corinne visited his home and was distraught and upset. Corinne told him that Harper admitted to her that he had killed Burleson by choking him to death.
Barker=s testimony, however, must be contrasted with Thomas=s own admissions to the police and family members. She gave three different statements to the police. In her first, she admitted hitting Burleson in the head twice with a pipe wrench. The first blow was hard enough to knock him down, and the second to knock him out. In her two subsequent statements she denied hitting Burleson and blamed Harper for his death. Thomas=s sister-in-law, Sarah Thomas, testified that she spoke with Thomas on the phone after her arrest. Thomas told her, AWell, I=m in a mess, but I had -- they kept screwing me over so I had to set an example, I had to set an example.@ Her father, Garth Thomas, testified that his daughter claimed that Burleson had attacked her and said that she hit him in the head with a pipe wrench. In a subsequent conversation, she told him that Burleson had a tape of her assault on another girl; that the assault was part of an initiation into the Mexican Mafia; and that, in the process of trying to recover the tape, she hit Burleson in the head. In later conversations, she blamed Harper for the murder. Thomas=s mother, Dolores Diane Thomas, confirmed that Thomas gave them three different versions of the event and that in the first version she admitted killing a man with a wrench. Thomas also told her mother that, if Harper had fed Burleson=s body to the hogs like she told him to, she would not be in jail because the hogs would have eaten everything including Burleson=s bones. Dolores was a nurse. In one conversation, Thomas asked her what an autopsy would show.
3. Analysis.
The indictment alleged that Thomas committed an act clearly dangerous to human life causing Burleson=s death by striking him with a pipe wrench or other unknown object, by choking him, and by manner and means unknown. There was no definitive determination of Burleson=s cause of death. The only explanations for it were that he was killed by a blow to the head, by choking, or by a combination of the two. There was no evidence that Thomas choked Burleson, and no forensic confirmation that he was choked. But there was evidence that Burleson was hit in the head with sufficient force that it fractured a bone, that Thomas hit Burleson in the head twice with a pipe wrench, and that she admitted to killing Burleson. Conversely, there was also evidence that Harper murdered Burleson by choking him to death.
We cannot order a new trial simply because, based on the quantum of evidence admitted, we might have voted to acquit; instead, we must be able to say with an objective basis in the record that the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson, 204 S.W.3d at 417. That test has not been satisfied in this case. The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Jaggers v. State, 125 S.W.3d 661, 670 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). The jury may believe all, some, or none of any witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury could have resolved the conflicting accounts of the incident against Thomas and determined beyond a reasonable doubt that she murdered Burleson. This conclusion is not against the great weight and preponderance of the evidence. Thomas=s second issue is overruled.
C. Corroboration of Thomas=s Pretrial Confession.
Finally, Thomas argues that there was insufficient evidence to support her extrajudicial confession. A confession is insufficient to support a conviction unless there is sufficient evidence to establish the corpus delicti or the act of a crime. See Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997) (Under the corpus delicti rule, an extrajudicial confession, standing alone, is not enough to support a conviction; other evidence must exist showing that a crime has in fact been committed.). The State may prove the corpus delicti by showing that some evidence exists outside of the extrajudicial confession which, considered alone or in connection with the confession, shows that the crime actually occurred. Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002). The independent evidence does not have to identify the accused as the culprit. Id. All that is required is that some evidence make the commission of the offense more probable than it would be without the evidence. Cardenas v. State, 30 S.W.3d 384, 390 (Tex. Crim. App. 2000).
Thomas points out that Dr. Krouse was unable to establish the cause of death, that he could not opine that Burleson was choked, and that the pipe wrench and floor shavings from her house tested negative for blood. Each of these contentions is true, but none are dispositive of the question. The question is whether there was evidence that Burleson was murdered. The answer to this is yes. Thomas complained that Burleson was threatening her with an incriminating tape prior to his death.[1] Harper testified that Burleson was dead and lying in a small pool of blood when he arrived at Thomas=s house and that there was a pipe wrench near Thomas. Forensic examination confirmed that Burleson received a skull fracture at or near the time of death, that this fracture was caused by blunt force trauma, and that a pipe wrench could have caused Burleson=s injury. Finally, Harper and Thomas hid Burleson=s body and van and cleaned up all traces of blood at her house.
This is sufficient evidence to make more probable than not that Burleson was murdered. Thomas=s third issue is overruled.
IV. Holding.
We affirm the judgment of the trial court.
RICK STRANGE
JUSTICE
April 24, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Thomas=s third issue refers to her extrajudicial confession (singular) but does not specify to which statement she refers or if she is also including her conversations with family members. We have analyzed this issue by excluding any inculpatory statement made by her after the incident.